Rajeevan P. V. v. M. K. Jayakrishnan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ## **`ARB.A NO.11 OF 2024`** ``` AGAINST THE ORDER DATED 03.02.2024 OF THE COMMERCIAL COURT - II (ADDITIONAL SUB JUDGE -II), ERNAKULAM IN CMA(ARB)NO.27 OF 2024 ``` ## **`APPELLANT/PETITIONER:`** ``` RAJEEVAN P. V. AGED 50 YEARS KRISHNAN NAIR, RESIDING AT 10D1, MANJOORAN MOONSTONE APARTMENT, THAMMANNAM ROAD, PALARIVATTOM, KOCHI, PIN - 682025 ``` ``` BY ADVS. B.J.JOHN PRAKASH P.PRAMEL COLIN ALEX SOORAJ M.S. VARSHA VIJAYAKUMAR NAIR GEORGE POONTHOTTAM (SR.) ``` ## **`RESPONDENT/RESPONDENT:`** ``` M. K. JAYAKRISHNAN AGED 59 YEARS S/O. LATE VASUDEVAN NAIR, RESIDING AT 11/775, 50B SECTOR, CHANDRANAGAR, SHYADRI COLONY, CHANDRANAGAR P.O., PALAKKAD, PIN - 678007 ``` ``` THIS ARBITRATION APPEALS HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **JUDGMENT** 2 Arb. A No.11 of 2024 ## **Anil K. Narendran, J** The appellant is the petitioner in CMA(Arb)No.27 of 2024 on the file of the Commercial Court - II (Additional Sub Judge -II), Ernakulam, which is one filed invoking the provisions under Section 9 of the Arbitration and Conciliation Act, 1996. In that matter, the appellant filed I.A.No.1 of 2024, seeking interim relief, in which the Commercial Court granted an order dated 03.02.2024. Paragraph 4 of that order reads thus; “Issue notice to the respondent. The petitioner shall deliver to the respondent or send it by registered post immediately, a copy of the application for interim order together with a copy of affidavit filed in support of the application, copies of the documents on which the applicant relies and directed to file an affidavit stating that the aforesaid have been so delivered or sent as contemplated under Rule 5A(1)(a) and (b) of Kerala Arbitration and Conciliation (Court) Rules, 1997, showing the compliance of the same immediately. For return of notice:27.03.2024.” 2. The grievance of the appellant in this Arbitration Appeal, which is one filed invoking the provisions under Section 37 of the Act, is that the prayer made in I.A.No.1 of 2024 for attachment of the bank accounts which are Sl.Nos.1 to 12 in Attachment B-schedule was not allowed by the Commercial 3 Arb. A No.11 of 2024 Court in the impugned order dated 03.02.2024 in I.A.No.1 of 2024. 3. Along with I.A.No.1 of 2024 filed in this Arbitration Appeal, the appellant has placed on record a copy of Arbitration Request No.16 of 2024 pending before this Court; copy of the memorandum in CMA(Arb)No.27 of 2024 filed before the Commercial Court – II, Ernakulam; and a screenshot of the website of the respondent, as Annexures A to C. 4. On 13.02.2024, when this appeal came up for admission, this Court issued notice on admission to respondent by special messenger, returnable by 14.02.2024 and the matter was directed to be listed at 2.00 p.m. 5. On 14.02.2024, when this appeal came up for consideration, despite service of notice by special messenger, there was no appearance for the respondent. Therefore, Registry was directed to verify whether there is any appearance for the respondent and the matter was ordered to be listed at 4.00 p.m. Since there was no appearance for the respondent at 4.00 p.m., the appeal was ordered to be listed today, for consideration. 6. Today, when this matter is taken up for 4 Arb. A No.11 of 2024 consideration, the appellant filed I.A.No.2 of 2024, producing therewith a copy of I.A.No.1 of 2024 in CMA(Arb)No.27 of 2024. 7. Heard the learned Senior Counsel for the appellant. Despite service of notice, none appears for the respondent. 8. During the course of arguments, the learned Senior Counsel for the appellant would place reliance on the judgement of the Apex Court in **Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited [AIR 2022** **SC 4294]** . Paragraphs 48 to 50 of that decision read thus; “48. Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the arbitral proceedings, during the arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act. All that the Court is required to see is, whether the applicant for interim measure has a good prima facie case, whether the balance convenience is in favour of interim relief as prayed for being granted and whether the applicant has approached the court with reasonable expedition. 49. If a strong prima facie case is made out and the balance of convenience is in favour of interim relief being granted, the Court exercising power under Section 9 of the Arbitration Act should not withhold relief on the mere 5 Arb. A No.11 of 2024 technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the CPC. 50. Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending Arbitral Award is not imperative for grant of relief under Section 9 of the Arbitration Act. A strong possibility of diminution of assets would suffice. To assess the balance of convenience, the Court is required to examine and weigh the consequences of refusal of interim relief to the applicant for interim relief in case of success in the proceedings, against the consequence of grant of the interim relief to the opponent in case the proceedings should ultimately fail.” 9. The law laid down by the Apex Court in **Essar House Private Limited [AIR 2022 SC 4294]** , in the context of Section 9 of the Arbitration and Conciliation Act is that if a strong prima facie case is made out and the balance of convenience is in favour of interim relief being granted, the Court exercising power under Section 9 of the Arbitration and Conciliation Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure, 1908. 10. A reading of the impugned order dated 03.02.2024 6 Arb. A No.11 of 2024 of the Commercial Court in I.A.No.1 of 2024 in CMA(Arb)No.27 of 2024 would show that while ordering conditional attachment, the Commercial Court limited the same to Attachment A and C schedules and the locker in Attachment B schedule. In case it is an omission on the part of the Commercial Court in granting a conditional attachment in respect of the bank accounts, which are Sl.Nos.1 to 12 in Attachment B schedule, despite sufficient pleadings in the affidavit filed in support of I.A.No.1 of 2024 in CMA(Arb)No.27 of 2024, it is for the appellant to file a proper application before the Commercial Court for redressal of his grievance. With the above observation, this appeal is disposed of. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** MIN **(Cntd……………7)** 7 Arb. A No.11 of 2024 The judgment dated 15.02.2024 in Arb. A.No.11 of 2024 is recalled and dismissed as not maintainable vide order dated 27.03.2024 in R.P.No.329 of 2024 in Arb. A.No.11 of 2024. Sd/Deputy Registrar 8 Arb. A No.11 of 2024 ## **`APPENDIX OF ARB.A 11/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE-A ``` ``` TRUE COPY OF ARBITRATION REQUEST NO. 16 OF 2024 FILED BEFORE THE HON'BLE HIGH COURT ``` ## **`ANNEXURE-B`** ``` TRUE COPY OF THE CMA (ARB.) NO. 27 OF 2024 FILED BEFORE THE HON'BLE COMMERCIAL COURT III AT ERNAKULAM. ``` ``` ANNEXURE-C TRUE COPY OF THE SCREEN SHOT OF THE WEBSITE WWW.SPECTROSCOPY.CO.IN. ``` ``` ANNEXURE-D ``` ``` THE TRUE COPY OF THE I.A. NO. 1 OF 2024 IN CMA. (ARB) NO. 27 OF 2024 ALONG WITH THE ATTACHMENT SCHEDULE. ```