Ashim Kumar Banerjee, J. - (1.) FACTS:
(2.) PARTIES entered into a contract under which the respondent was to supply coal to the appellant for its power plant. Under the agreement, the price of coal would vary as per the specifications, the variance would principally relate to moisture content. The dispute arose when the appellant declined to pay as per the bill raised by the respondent on the ground, the coal supply was not as per specification, it would carry more moisture than what was specified and billed for. Matter was referred to arbitration and at the stage of filing of the pleadings, appellant filed an application under Section 9 of the Arbitration and Conciliation Act 1996 inter -alia, praying for examination of the sample that they collected from the consignment supplied by the respondent. The respondent also filed an application under Section 9 inter -alia, praying for direction upon the appellant to show cause why they would not be asked to furnish security for a sum of Rs. 1,67,42,692 coupled with an order of injunction restraining the appellant from dealing with and/or disposing and/or alienating and or encumbering and/or creating any third party interest in respect of assets and properties as also from operating their bank accounts leaving apart the said sum of Rs. 1,67,42,692. The learned Judge heard the applications and disposed of the same on the first day without calling for affidavits. While dealing with the appellant's application the learned Judge observed, it was not in dispute that the samples had been drawn and sent to an inspection agency namely Inspectorate Griffith and subsequently to SGS. Perusing both the reports, the learned Judge found no variance and thus rejected the contention of the appellant.
(3.) WITH regard to the prayer for security made by the respondent, His Lordship observed as follows: "Now the question that comes up for consideration is what kind of relief can be given in favour of Naresh Dhanraj Jain, at this stage. If this Court directs attachment of assets and properties of Dhariwal infrastructure Limited and the amount lying in its bank account before an award is passed, it will tantamount to the arbitration proceedings being reduced to an otiose level. However, some interim protection is required to be given to Naresh Dharaj Jain, being the sole proprietor of M/s. K.K. Enterprise. As such, let there be an order directing Dhariwal Infrastructure Limited to set apart a sum of Rs. 1,67,42,692/ -, being the claim of Naresh Dhanraj Jain and keep the said amount in a fixed deposit account to be opened in a nationalized bank, jointly by Dhariwal Infrastructure Limited and M/s. K.K. Enterprise. Such fixed deposit shall be renewed from time to time till the arbitration proceedings between the parties are finally concluded.";