I.P.MUKERJI,J. - (1.) A very interesting point of law has arisen in these four cases. All of them are being disposed of by this common judgement.
(2.) section 9 of the Arbitration and Conciliation Act, 1996, before its amendment on 23rd October, 2015, empowered the court to make inter alia an order for preservation, interim custody and sale of any property which was the subject matter of the arbitration agreement, to pass an order of interim injunction, to appoint a receiver and so on. After amendment of this Act, once the arbitral tribunal has been constituted, it has the power to pass these orders. If for any reason the court finds that the order of the tribunal will not be efficacious, it might entertain the application. Any party to an arbitration might apply to the court and now the tribunal under Section 9. This application can be made before the arbitral proceedings, during it and after an award has been passed. It has to be made before the execution proceedings under Section 36 of the Act.
(3.) In each of these four matters an award has been passed by the learned arbitrator. Till now the respondents are using the equipments which are hypothecated by them to the petitioners, by agreement. The respondents have failed and neglected to pay the instalments payable under the respective loan cum hypothecation agreements. By the awards in question the respondents have been directed to pay the sums due under the agreement together with interest accrued thereon and penalty subject to the petitioners' charge over the equipments. Either the respondents have filed applications to set aside the awards under Section 34 of the said Act or the time to make the same has not expired.;