JUDGMENT :

G.S. KULKARNI, J.

1. This is a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short “the Act”) whereby the petitioner has prayed for interim measures pending the arbitral proceedings. The dispute between the parties has arisen under a contract for sale of scrap dated 21 September 2021 titled as “Scrap Sale Order” (for short ‘the contract’) issued by the respondent in favour of the petitioner, inter-alia for a sale of scrap material (Reinforcement Steel, Structural Steel, SS Aluminum etc.) of the following description as set out:

1. Scrap of Plant and Machinery (Structural Steel Scrap).

2. Reiforcement Steel Scrap - Inclusive of all Demolition Charges for structures and plant building upto ground level.

3. SS Scrap.

4. Aluminum Scrap.

2. It also appears to be not in dispute that the parties consented to the following addition to be made to the contract on 26 October 2021:

“Note: Items/material other than ‘plant and machinery’ related items, Total Qty upto 200 MT.”

3. The contract provides for general terms and conditions. Clause (3) thereof is the arbitration agreement between the parties. Clause (5) provides for ‘Validity of the Contract’ to provide that the validity of the contract would be upto 30 June 2022. It is provided that the petitioner (buyer) should lift the scrap items from the identified areas on regular basis and on accumulation of scrap materials. It further provides that termination from either side will require 15 days notice in advance. The other relevant clause is Clause 19 which provides that the sale shall be on “as is where is basis” and on “ground clearance basis” and provides that the items shall be cleared without sorting or removal of any part, and a pick and choose arrangement of collection would not be permitted. It also provides that entire lots should be cleared as directed and that lots shown should be completely removed and the site should be cleared fully and certified by the designated officer. Clause 20 provides that at the time of removal of Scrap material, if any usable/good material is found, the respondent would have right to hold/retain those materials. In the course of execution of the contract, in regard to the payments received from the petitioner, the respondent maintained a ledger account of the petitioner, a copy of which is annexed at ‘Exhibit F’ of the petition, which shows that the petitioner had paid an amount of Rs. 2,14,11,212/- and in addition to that it had paid an advance amount of Rs. 21,96,468/- which was the credit balance available to the petitioner in such account.

4. The case of the petitioner is that the execution of the contract, was smoothly taking place, until on, 24 November 2021 an unusual email was received from the respondent to the petitioner. According to the petitioner, addressing such mail was an attempt on the part of the respondent to create some record, as surprisingly the petitioner was called upon to stop further activities of lifting the material effective from the next day to be followed by demobilization of deployed resources. This on the ground that the petitioner should submit an offer “as soon as possible” purportedly for complete plant and machinery and demolition of the building. The said mail can be noted which reads thus:

“Wednesday, 24 November 2021 at 4:20 P.M.

Dear Paresh Bhai,

Pl ref our detailed discussion over phone reg your lifting of loose material scrap from Nylon Plant, under progress.

As briefed to you, our objective and priority is disposal of “complete plant & machinery and demolition of Builing.”

You are requested to submit your Offer for that asap for further discussion with and finalization by our Head - Commercial (HO-A'bad).

After lifting loose material and few peripherals, whatever is now left as on date, will be covered in the above finalization.

Hence, you are requested to stop further activities and lifting, eff tomorrow, followed by demobilization of deployed resources.

(Regards)

Sandip Shah

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