Brand Value Communications Ltd. Vs. Eskay Video Private Ltd. - Court Judgment

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			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
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			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
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			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
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			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
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			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
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		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
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		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
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		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
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			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
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			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
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		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
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		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
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			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
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			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'brand-value-communications-ltd-vs-video-private',
	'args' => array(
		(int) 0 => '903056',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
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			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
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			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
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		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
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			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
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			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
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			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
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			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
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			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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Bhaskar Bhattacharya, J.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(a) Leave under Clause 12 of the Letters Patent.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(h) Ad-interim orders in terms of prayers above.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(i) Costs of and incidental to his application be paid by the respondent.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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5. The case made out by the respondent in the application may be epitomized thus:

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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9. Interim measures, etc. by Court.-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:

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(ii) for an interim measure of protection in respect of any of the following matters, namely:

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(b) securing the amount in dispute in the arbitration;

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(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;

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(d) interim injunction or the appointment of a receiver;

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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(e) such other interim measure of protection as may appear to the Court to be just and convenient,

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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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.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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26. In the facts and circumstances, there will be, however, no order as to costs.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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Bhaskar Bhattacharya, J.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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27. I agree.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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J.N. Patel, C.J.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
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28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.

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	'title_for_layout' => 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '903056',
			'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
			'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
			'appellant' => 'Brand Value Communications Ltd.',
			'authreffered' => '',
			'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
			'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '2010-07-21',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
			'judgement' => '<p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p style="text-align: justify;">2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p style="text-align: justify;">3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p style="text-align: justify;">(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p style="text-align: justify;">(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p style="text-align: justify;">(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p style="text-align: justify;">(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p style="text-align: justify;">(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p style="text-align: justify;">4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p style="text-align: justify;">(a) Leave under Clause 12 of the Letters Patent.</p><p style="text-align: justify;">(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p style="text-align: justify;">(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p style="text-align: justify;">(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p style="text-align: justify;">(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p style="text-align: justify;">(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p style="text-align: justify;">(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p style="text-align: justify;">(h) Ad-interim orders in terms of prayers above.</p><p style="text-align: justify;">(i) Costs of and incidental to his application be paid by the respondent.</p><p style="text-align: justify;">(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p style="text-align: justify;">5. The case made out by the respondent in the application may be epitomized thus:</p><p style="text-align: justify;">6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p style="text-align: justify;">7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p style="text-align: justify;">8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p style="text-align: justify;">9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p style="text-align: justify;">10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p style="text-align: justify;">11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p style="text-align: justify;">12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p style="text-align: justify;">13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p style="text-align: justify;">14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p style="text-align: justify;">15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p style="text-align: justify;">16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p style="text-align: justify;">9. Interim measures, etc. by Court.-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:</p><p style="text-align: justify;">(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p style="text-align: justify;">(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p style="text-align: justify;">(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p style="text-align: justify;">(b) securing the amount in dispute in the arbitration;</p><p style="text-align: justify;">(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><p style="text-align: justify;">(d) interim injunction or the appointment of a receiver;</p><p style="text-align: justify;">(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">(Emphasis supplied by us)</p><p style="text-align: justify;">17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p style="text-align: justify;">18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p style="text-align: justify;">19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p style="text-align: justify;">5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p style="text-align: justify;">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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p style="text-align: justify;">(Emphasis given by us)</p><p style="text-align: justify;">20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p style="text-align: justify;">21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p style="text-align: justify;">22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p style="text-align: justify;">23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p style="text-align: justify;">24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p style="text-align: justify;">25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p style="text-align: justify;">26. In the facts and circumstances, there will be, however, no order as to costs.</p><p style="text-align: justify;">Bhaskar Bhattacharya, J.</p><p style="text-align: justify;">27. I agree.</p><p style="text-align: justify;">J.N. Patel, C.J.</p><p style="text-align: justify;">Later:</p><p style="text-align: justify;">28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p style="text-align: justify;">29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '',
			'ratiodecidendi' => '',
			'respondent' => 'Eskay Video Private Ltd.',
			'sub' => 'Arbitration;Contract',
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$title_for_layout = 'Brand Value Communications Ltd Vs Eskay Video Private Ltd - Citation 903056 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '903056',
		'acts' => 'Arbitration and Conciliation Act - Section 9; ;Code of Civil Procedure (CPC) - Sections 36 and 94 - Order 38, Rule 5 - Orders 39 and 40',
		'appealno' => 'A.P.O.T. No. 387 of 2010, G.A. No. 2185 of 2010 and A.P. No. 115 of 2010',
		'appellant' => 'Brand Value Communications Ltd.',
		'authreffered' => '',
		'casename' => 'Brand Value Communications Ltd. Vs. Eskay Video Private Ltd.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Jayanta Kumar Mitra,; Raja Basu Chowdhury,; Arup Bhattac',
		'counseldef' => ' Siddhartha Mitra,; Manju Bhuteria and; Roopa Sheth Mitra',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '2010-07-21',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' J.N. Pate, C.J. and; Bhaskar Bhattacharya, J.',
		'judgement' => '<p>Bhaskar Bhattacharya, J.</p><p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.</p><p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.</p><p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:</p><p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.</p><p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.</p><p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.</p><p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.</p><p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.</p><p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:</p><p>(a) Leave under Clause 12 of the Letters Patent.</p><p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.</p><p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.</p><p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.</p><p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.</p><p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.</p><p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.</p><p>(h) Ad-interim orders in terms of prayers above.</p><p>(i) Costs of and incidental to his application be paid by the respondent.</p><p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.</p><p>5. The case made out by the respondent in the application may be epitomized thus:</p><p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.</p><p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.</p><p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.</p><p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.</p><p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.</p><p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.</p><p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.</p><p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.</p><p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.</p><p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.</p><p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:</p><p>9. Interim measures, etc. by Court.-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:</p><p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or</p><p>(ii) for an interim measure of protection in respect of any of the following matters, namely:</p><p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;</p><p>(b) securing the amount in dispute in the arbitration;</p><p>(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><p>(d) interim injunction or the appointment of a receiver;</p><p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,</p><p>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.</p><p>(Emphasis supplied by us)</p><p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.</p><p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.</p><p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:</p><p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.</p><p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)</p><p>(Emphasis given by us)</p><p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.</p><p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'</p><p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.</p><p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.</p><p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.</p><p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.</p><p>26. In the facts and circumstances, there will be, however, no order as to costs.</p><p>Bhaskar Bhattacharya, J.</p><p>27. I agree.</p><p>J.N. Patel, C.J.</p><p>Later:</p><p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.</p><p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>',
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$ctype = ' High Court'
$caseref = 'Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors.<br>'
$content = array(
	(int) 0 => '<p>Bhaskar Bhattacharya, J.',
	(int) 1 => '<p>1. This appeal is at the instance of a respondent in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against an order dated 16th June, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the said application under Section 9 of the Act initiated by the present respondent by directing the appellant before us to deposit a sum of Rs. 2 crore with the Registrar, Original Side, which would abide by the result of the reference. While passing such direction, His Lordship was of the view that the sum of Rs. 2 crore, which the present appellant had been directed to pay, was assessed at on the tentative assessment of the fact that 75 films were offered under the Memorandum of Understanding. The Registrar, Original Side was directed to invest the amount in a fixed deposit with a nationalized bank and forward the copies of the fixed deposit receipt to the parties.',
	(int) 2 => '<p>2. Being dissatisfied, the respondent in the proceeding under Section 9 of the Act has come up with the present appeal.',
	(int) 3 => '<p>3. The facts giving rise to filing of the application under Section 9 of the Act may be summed up thus:',
	(int) 4 => '<p>(i) On July 25, 2002, the appellant had executed a Memorandum of Understanding with the respondent by which the respondent was supposed to deliver 75 movies to the appellant and the appellant was entitled to exploit or telecast those movies for a period of three years commencing from 1st August, 2009.',
	(int) 5 => '<p>(ii) It was agreed by the parties that in respect of movies, which were to be classified as 'A', and 'A+' category, there should be limited transmission as mentioned in the Memorandum of Understanding but in respect of others, i.e., 'B' and 'C' categories, there was no limit of transmission. It was also agreed that gradation should be made by the channel considering diverse aspects including quality of film. Each movie was priced at Rs. 39 lakh.',
	(int) 6 => '<p>(iii) According to the appellant, notwithstanding the fact that the respondent was obliged to make over 75 movies, the respondent failed and neglected to do so and had only handed over to the appellant 48 movies out of which 20 movies had to be returned by the appellant due to failure on the part of the respondent to give necessary legal clearance to the appellant to exploit those films.',
	(int) 7 => '<p>(iv) Over and above, according to the appellant, the respondent did not make over any other movie to the appellant until December 2009. The appellant complained that despite the expiry of more than five months, the respondent having failed to make over all the 75 movies, it was obvious that the appellant was not in a position to effectively exploit those within the period specified in the Memorandum of Understanding. The appellant complained that out of the 48 movies delivered, it was only in a position to commercially exploit 28 movies, and consequently, the respondent made clear breach of the terms of the Memorandum of Understanding.',
	(int) 8 => '<p>(v) The appellant had already paid a sum of Rs. 10 crore to the respondent and terminated the said Memorandum of Understanding by letter dated 26th December, 2009. The appellant contended that although in terms of Clause 12.2 of the Memorandum of Understanding, the money so advanced by the appellant was refundable to the appellant on termination, the appellant having already telecast the aforesaid 28 movies and having intention to telecast the said 28 movies for the assigned period offered to pay a further sum of Rs. 92 lakh over and above the sum already paid being the aggregate value of the said 28 movies calculated at the rate of Rs. 39 lakh for each one.',
	(int) 9 => '<p>4. On 12th March, 2010, the respondent filed an application under Section 9 of the Act thereby praying for the following relief:',
	(int) 10 => '<p>(a) Leave under Clause 12 of the Letters Patent.',
	(int) 11 => '<p>(b) An order of injunction restraining the respondent and their servants and agents from in any manner telecasting or deal with in any manner the said 48 Bengali feature films, particular whereof have been given in Annexure-A to the agreement of 25th July, 2009.',
	(int) 12 => '<p>(c) An order of injunction restraining the respondent and their servants and agents from in any manner dealing with or telecasting the said 48 Bengali feature films, the original cassettes of which were handed over to the respondent.',
	(int) 13 => '<p>(d) An order of injunction restraining the respondent from dealing with, disposing of and/or in any manner encumbering its assets and properties in any manner whatsoever.',
	(int) 14 => '<p>(e) An order be made directing the respondent to furnish security for a sum of Rs. 19,25,00,000.00 by way of Bank Guarantee or in any manner as may be directed by this Hon'ble Court.',
	(int) 15 => '<p>(f) An order of injunction restraining the respondent from dealing with, disposing of and/or encumbering in any manner its equipment and machineries for telecast of films.',
	(int) 16 => '<p>(g) An order of injunction of restraining the respondent from operating any of its bank accounts and in particular his account maintained with Axis Bank bearing Account No. 410010210256 without leaving a sum of Rs. 19,25,00,000.00.',
	(int) 17 => '<p>(h) Ad-interim orders in terms of prayers above.',
	(int) 18 => '<p>(i) Costs of and incidental to his application be paid by the respondent.',
	(int) 19 => '<p>(j) Such further or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.',
	(int) 20 => '<p>5. The case made out by the respondent in the application may be epitomized thus:',
	(int) 21 => '<p>6. Although the respondent was at all material time ready and willing to perform its obligations under the Memorandum of Understanding, the appellant illegally terminated the agreement and started telecasting the 28 films even after termination of the agreement. For such illegal act on the part of the appellant, the respondent had suffered damages to the extent of Rs. 19,25,00000/-. The appellant had not made payment of telecasting 75 films offered by the respondent. In view of continuous telecasting of 28 films by the appellant, the respondent was not getting buyer of such films for telecasting through any other channel. The appellant is not in a sound financial state and in such circumstances, the appellant should be directed to protect the interest of the respondent. The respondent has no idea about the assets and the properties of the appellant. However, the respondent has ascertained that the appellant has equipments and machineries for telecasting of films. The value of such machineries are, however, much less than the claim of the respondent. The appellant to defeat and delay the execution of the award, which will be passed in favour of the respondent, will encumber or dispose of such machineries and hence, the prayer made in the application should be allowed.',
	(int) 22 => '<p>7. At the ad interim stage, by order dated 17th March, 2010, the learned Single Judge did not pass any interim order but after the appearance of the appellant and on consideration of the defence taken by the appellant, as indicated above, the learned Trial Judge passed the order impugned in this appeal.',
	(int) 23 => '<p>8. Mr. Jayanta Mitra, the learned Senior Advocate appearing on behalf of the appellant, strenuously contended before us that the object of the interim order being to maintain status quo, there was no justification of passing a direction upon his client to deposit a sum of Rs. 2 crore as a measure of security to the respondent in the event an award was passed in favour of the respondent. According to Mr. Mitra, the learned Single Judge erred in law in not considering the scope of Section 9 of the Act particularly when the claim of the parties to be adjudicated is limited to monetary claim. Mr. Mitra contends that in the absence of any allegation that the appellant was going to transfer its assets with a view to defraud the respondent or any other creditor, the learned Single Judge could not have passed such direction under Section 9 of the Act merely on the basis of apprehension of the respondent. Mr. Mitra, therefore, prays for setting aside the order impugned and rejection of the application under Section 9 of the Act.',
	(int) 24 => '<p>9. Mr. Siddhartha Mitra, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that in view of the Memorandum of Understanding between the parties, his client is restrained from utilising the 28 best films of the lot, the right to exploit over which have been retained by the appellant, and, thus, the learned Single Judge rightly protected the interest of the respondent by passing such direction.',
	(int) 25 => '<p>10. Mr. Siddhartha Mitra submits that the claim of his client is much more than Rs. 2 crore, which the appellant has been directed to deposit by the learned Single Judge. Mr. Mitra, therefore, prays for dismissing the appeal, as according to him, the learned Single Judge having properly exercised his discretion, this Court should not interfere with the just discretion exercised by the learned Trial Judge. In support of such contention, Mr. Mitra relies upon a Division Bench decision of this Court in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217.',
	(int) 26 => '<p>11. After hearing the learned Counsel for the parties and after going through the materials on record, we find that it was the appellant who terminated the contract on the allegation that the respondent failed to deliver the 75 films. There is no dispute that the best 28 films of the lot of 48 delivered by the respondent have been utilised by the appellant and having made copy of those from the original betas, the appellant is now in a position to telecast those 28 films in future although the originals have been returned.',
	(int) 27 => '<p>12. In our opinion, the appellant itself having terminated the Memorandum of Understanding, now cannot insist that during the period of Memorandum of Understanding, the respondent should be restrained from utilising the 28 best films or the other films those were offered to the appellant.',
	(int) 28 => '<p>13. We, therefore, propose to modify the order impugned to this extent that instead of passing any direction for depositing any amount, it should be made clear that the respondent would be free to telecast any of the films, those were supplied or offered to the appellant and at the same time, the appellant will also be entitled to telecast the 28 films, the copy of which has already been made by the appellant, subject to the final decision that may be taken by the Arbitrator on the question as to who is responsible for the breach of the Memorandum of Understanding.',
	(int) 29 => '<p>14. We find substance in the contention of Mr. Jayanta Mitra, the learned Senior Advocate for the appellant, that in this type of a dispute, where the parties have rival monetary claims against each other alleging violation of the terms of the Memorandum of Understanding against the other, no direction of deposit of money can be made on an application under Section 9 of the Act so as to protect the alleged interest of any of the parties by assuming on the basis of prima facie case that the Arbitrator may pass award in his favour, unless it is established that the other party has started transferring or has already taken step to transfer his assets for defrauding his creditors or for avoiding payment of the award that may be passed against him.',
	(int) 30 => '<p>15. In the application under Section 9 of the Act, no such allegation has been made. The respondent has even admitted that it had no idea about the assets of the appellant except the fact that it has equipments and machineries for telecasting of the films. Thus, there was no justification of passing direction for payment of money by way of security.',
	(int) 31 => '<p>16. The object of Section 9 (ii) of the Act is similar to those contained in Section 94 read with Orders 38-40 of the Code of Civil Procedure as would appear from the language employed therein which is quoted below:',
	(int) 32 => '<p>9. Interim measures, etc. by Court.-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:',
	(int) 33 => '<p>(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or',
	(int) 34 => '<p>(ii) for an interim measure of protection in respect of any of the following matters, namely:',
	(int) 35 => '<p>(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;',
	(int) 36 => '<p>(b) securing the amount in dispute in the arbitration;',
	(int) 37 => '<p>(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;',
	(int) 38 => '<p>(d) interim injunction or the appointment of a receiver;',
	(int) 39 => '<p>(e) such other interim measure of protection as may appear to the Court to be just and convenient,',
	(int) 40 => '<p>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.',
	(int) 41 => '<p>(Emphasis supplied by us)',
	(int) 42 => '<p>17. Therefore, the power entrusted to a Court in any suit or proceedings for passing orders as mentioned in the Supplemental Proceedings indicated in Part VI of the body of the Code of Civil Procedure has been substantially repeated in Section 9(ii) of the Act by making it clear that in dealing with such an application, the Courts shall have the same power as it has for the purpose of or in relation to any proceedings before it.',
	(int) 43 => '<p>18. Thus, it is clear that while dealing with an application under Section 9(ii) of the Act, the Court should be guided by the same principles, which are required to be followed while disposing of the applications under Orders 38-40 of the Code.',
	(int) 44 => '<p>19. In the case before us, the dispute between the parties being purely Single Judge erred in law in passing a direction for deposit of the money on the appellant merely on a prima facie finding on merit in the absence of any finding that the appellant was either transferring or alienating his properties to avoid payment of money that may be awarded against it or that it was threatening or intending to remove or dispose of his properties with a view to defrauding his creditors. At this stage, we may profitably refer to the following observations of the Supreme Court in the case of Raman Tech & Process Eng. Co. v. Solanki Traders reported in : (2008) 2 SCC 302 while considering a case of grant of relief of attachment before judgment:',
	(int) 45 => '<p>5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.',
	(int) 46 => '<p>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 ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide 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 execution of any decree that may be passed against him, before power 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. Manech Gazi for a clear summary of the principles.)',
	(int) 47 => '<p>(Emphasis given by us)',
	(int) 48 => '<p>20. The principles mentioned above squarely apply to the proceedings under Section 9(ii) of the Act and a Court before passing any direction in the nature of attachment before award should follow those principles. The learned Single Judge, as it appears from the order impugned, totally ignored the abovementioned principles.',
	(int) 49 => '<p>21. We are quite alive to the position of law that in dealing with an appeal against discretionary order, an Appellate Court will not interfere simply because, from the selfsame materials, a different view is possible and the decision relied upon by Mr. Siddhartha Mitra appearing for the respondent in the case of Three-N-Products Private Limited v. Emami Limited reported in 2010 (2) CHN (Cal) 217 repeated the said well-settled proposition of law. But the law is equally settled, as pointed out in the said decision, that if it, however, appears that while exercising such discretion, the learned Trial Judge has wrongly applied the principles for grant of such discretion or if it is established that such discretion has been unreasonably or capriciously exercised, an Appellate Court can definitely interfere. It was further pointed out therein by relying upon the decision of the Supreme Court in the case of Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors. reported in : AIR 2003 SC 1391, where the said Court reiterated the well-known proposition that while hearing an appeal against a discretionary order, 'an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.'',
	(int) 50 => '<p>22. We are of the view that the aforesaid observations apply to the case before us where the order impugned is clearly wrong.',
	(int) 51 => '<p>23. We, therefore, set aside the order impugned and dispose of the application under Section 9 of the Act by directing that the appellant should be entitled to telecast the 28 films in terms of the Memorandum of Understanding till the passing of the award and, at the same time, the respondent will also be free to telecast any of the 48 films which it had offered to the appellant subject to the decision of the Arbitrator.',
	(int) 52 => '<p>24. The learned Counsel appearing for the parties submitted before us that they would file written agreement before us by proposing the name of Mr. S.P. Sarkar, Senior Advocate of this Court, as a sole Arbitrator in the matter according to their choice.',
	(int) 53 => '<p>25. We, thus, allow this appeal, and set aside the order impugned and dispose of the application under Section 9 of the Act to the extent indicated above.',
	(int) 54 => '<p>26. In the facts and circumstances, there will be, however, no order as to costs.',
	(int) 55 => '<p>Bhaskar Bhattacharya, J.',
	(int) 56 => '<p>27. I agree.',
	(int) 57 => '<p>J.N. Patel, C.J.',
	(int) 58 => '<p>Later:',
	(int) 59 => '<p>28. After this order is passed, Mr. Basu Chowdhury, the learned advocate appearing on behalf of the appellant, prays for stay of operation of our order.',
	(int) 60 => '<p>29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.<p>'
)
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29. In view of what has been stated above, we find no reason to stay our order. The prayer for stay is refused.