PATHERYA J. - (1.) THIS is an application filed under Section 9 of the 1996 Act for interim relief in view of the arbitration clause contained in agreement dated 5th December, 2005. In view of such arbitration clause arbitration proceedings was initiated in October, 2011. Subsequently the Arbitrator by his award dated 18th January, 2012 passed an award terminating the arbitration proceeding due to efflux of time.
(2.) THE case of the petitioner is that India Media Services Private Limited paid sums on behalf of Indian Express (Madurai) and in view of such payment Indian Express (Madurai) agreed to transfer to it its property at Hyderabad. A suit for specific performance was filed by the respondent against Indian Express (Madurai) and a consent decree was passed on 17th March, 2004. In 2011 the property was conveyed to the respondent. The petitioner herein had financed payment to the respondent to enable payment by it on behalf of Indian Express (Madurai). The property which was to come to the respondent from Indian Express (Madurai) was to be transferred under an agreement to the petitioner herein directly as a nominee, such nomination agreement is dated 5th December, 2005. In proceedings filed before the Supreme Court of India on 14th March, 2011 an order was passed directing the parties to maintain status quo with regard to possession of the Hyderabad property. The arbitration clause has been accepted by all parties as the respondent was the claimant in arbitration proceedings. Subsequently it was contended by the respondent who was the claimant therein before the arbitrator that the said agreement stood frustrated as the arbitration proceedings was not concluded within 60 days from the date of entering into reference. In fact on 11th December, 2011 an undertaking was given before the Arbitrator by the respondent not to deal with or dispose of the property for a period of three months from the date of award. In spite of the Supreme Court's order a development agreement was executed by the respondent and undertaking given before the Arbitrator. In the affidavit of evidence filed by the respondent the claimant has categorically stated that the only shareholder of the respondent is M-real India and that the conveyance in favour of the respondent was executed on 8th July, 2010. As the only shareholder of the respondent is M- real India, there is every possibility of the said sole shareholder taking a decision to dispose of the said property and in the event such a situation does arise, the petitioner will be remediless. The arbitrator terminated the proceedings on 18th January, 2012, therefore the undertaking given no longer exists. Since 14.12.2011 the situation has not changed which would warrant discontinuance of such undertaking. Therefore to protect the interest of the petitioner an order of injunction be passed restraining the respondent from disposing of the said property either by transfer of shares or otherwise. Counsel for the respondent submits that the agreement between the parties is dated 5th December, 2005. The suit filed by the respondent against Indian Express (Madurai) was decreed and Indian Express (Madurai) adjusted the monies by transfer of the Hyderabad property to the respondent. This transfer though effected no possession of the Hyderabad property has been given to the respondent. As per order dated 14th March, 2011 the parties were directed to maintain status quo with regard to possession of the Hyderabad property. On 28th November, 2007 the agreement was sought to be cancelled and the said cancellation is the subject matter of dispute before the Arbitrator. The agreement was cancelled in 2007 and since November, 2007 till November, 2011 no step has been taken to set-aside the cancellation. No Court proceedings has been initiated nor is there any interim order.
(3.) CLAUSE -B of the Nomination Agreement dated 5th December, 2005 specifically stated that the guarantor approached the nominee and offered to get the conveyance of the schedule property in the name of the nominee from the vendor and it was agreed that the nominee would take conveyance for Rs. 15 crores. The terms of payment was also set out in Clause-5 of the said agreement. Pursuant to the aforesaid on 8th July, 2010 a conveyance deed was executed wherein one of the witnesses is one Mr. Manoj Sharma a representative of the petitioner. At the meeting held between the parties on 20th February, 2010 the modalities of the agreement was worked out viz. outright sale or a joint venture agreement. This will also be reflected in the pleadings in paragraph 3 of the petition.;