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TMI Blog2023 (9) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... parking spaces with each flat and an additional 66 car parking spaces and undivided proportionate share of a piece of land measuring 3337.34 square meters in the building proposed to be constructed by the respondent. The petitioner has sought for the aforesaid and other orders by way of the present application filed under section 9 of The Arbitration and Conciliation Act, 1996. 2. The petitioner is presently under an Administrator appointed by the National Company Law Tribunal (NCLT) exercising powers similar to that of a Resolution Professional under the provisions of the Insolvency and Bankruptcy Code, 2016. The petitioner had granted a loan of Rs. 200 crores to the respondent on easy terms. The respondent defaulted in its repayment obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgagee of the flats and car parking spaces. Counsel relies on the pleadings in the application to urge that the petitioner has sought for interim protection for the security interest in respect of the flats and car parking spaces and relies on the Supreme Court decision in Booz Allen and Hamilton INC. v. SBI Home Finance Limited; (2011) 5 SCC 532 to say that a suit for enforcement of a mortgage should be decided by a Court and not by an arbitral tribunal. It is also submitted that the power to grant interim relief by way of an injunction is conferred in aid of the final relief; hence if the final relief cannot be granted, temporary relief in the same terms cannot also be granted. Counsel submits that any reliefs arising out of a documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its power to grant interim relief since no final relief can be granted as the dispute is non-arbitrable cannot be accepted. This is by reason of the fact that the petitioner has not filed its statement of claim since arbitration is yet to commence. Therefore, it would be presumptuous and speculative for the respondent to assume that the petitioner would make a claim for enforcement of the mortgage in the arbitration. The respondent's reliance on Cotton Corporation of India Limited v. United Industrial Bank Limited; (1983) 4 SCC 625 is hence misplaced in this regard. 9. There is also no evidence on record to show that the petitioner is seeking enforcement of any mortgage. The respondent therefore cannot resist the reliefs on a pre-supposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng from the respondents to the petitioner. 11. These facts alone would persuade this Court to agree with the petitioner's contention that the respondent is in continuing breach of the petitioner's rights arising out of the loan agreement. The encumbrance of the respondent's properties is in continuation of that breach. The hypothecation and charge are undisputed and the petitioner's rights are therefore required to be protected. 12. Section 9(1) of The Arbitration and Conciliation Act, 1996, confers almost unlimited powers on a Court to grant interim measures prior to, pending or even after passing of the award but before its execution. Section 9(1)(ii)(a) specifies that a party to a arbitration agreement can apply to a Court for preserva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of injunction restraining the respondent from dealing with any further or creating any interest over 13 flats/units together with 13 car parking spaces bundled with each flats/units and an additional 66 car parking spaces and undivided proportionate share of the land measuring 3337.34 square meters in the building to be constructed by the respondent. 16. Mr. Rajratna Sen of the Bar Library Club is appointed as the Receiver to take symbolic possession of the aforesaid properties either by himself or through an agent as may be practicable. The remuneration of Rs. 2 lakhs of the learned Receiver shall be borne by the petitioner together with all his travel, accomodation and other expenses. The petitioner shall also make payment and other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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