An order in the nature of attachment before judgment under Section 9 of the Arbitration and Conciliation Act, 1996, can be passed upon compliance with the provisions of Order 38, Rule 5 of the Code of Civil Procedure, 1908. The petitioner must show, prima facie, that the claim is bona fide and valid, and also satisfy the court that the respondent is about to remove or dispose of the whole or part of the respondent's property with the intention of obstructing or delaying the execution of any decree that may be passed against the respondent.

Sanjib Banerjee, J.

The Court : AP No.480 of 2012 is a petition under Section 9 of the Arbitration and Conciliation Act, 1996. GA No.1989 of 2012 is the respondent's application for vacating the subsisting interim order. GA No.2168 of 2012 is an application by the petitioner for steps being taken against the deponent of an affidavit affirmed on behalf of the respondent.

2. The petitioner moved the petition under Section 9 of the 1996 Act ex parte on the ground that if notice was served, the meagre assets of the respondent could be alienated with a view to avoid payment to the petitioner. Upon noticing the claim of the petitioner to be in excess of Rs. 30 crore, an ex parte order was passed on June 26, 2012 in terms of prayer (g) of the petition, limited only to the Salt Lake property described under the second head in paragraph 30 of the petition. The injunction restraining the respondent and its men and agents from disposing of or selling or transferring or encumbering or letting out or charging or alienating or dealing with the Salt Lake property continues.

3. On July 5, 2012 when the matter was next taken up, the respondent was not represented despite deemed service. The order recorded that the directors of the respondent had also been served by electronic mail or, at least, had been informed of the proceedings and of the order passed on this petition on June 26, 2012. Directions for filing affidavits were issued on July 5, 2012 and, on the further prayer of the petitioner, the order of injunction was extended to cover a Delhi property at Friends Colony. A Special Officer was also appointed on July 5, 2012 to report on the position of occupation at both the Salt Lake property and the Friends Colony property.

4. Shortly upon the vacating application being filed, the parties agreed to the personnel of the arbitrator and the reference has commenced. The respondent says that in the respondent agreeing to fast-track the reference, it is evident that the respondent does not seek to delay the adjudication of the disputes between the parties. The respondent suggests that given the usual time taken for the arbitral tribunal to be constituted on a request under Section 11 of the 1996 Act, after the adjudicatory part of the matter is completed, such fact should weigh with the Court in considering whether the conduct of the respondent is such that it intends to defraud the petitioner.

5. The respondent asserts that an order in the nature of attachment before judgment is regarded as an unusual order and may be passed only upon exceptional grounds being cited. The respondent insists that there is no material in the petition on the basis of which the authority under Order 38, Rule 5 of the Code may be invoked or exercised and the crucial element of mens rea on the part of the respondent has not been made out in the petition. The respondent claims that though Section 9 of the 1996 Act apparently allows such interim orders to be passed as the Court may deem proper in the circumstances, an order in the nature of attachment before judgment may only be passed upon compliance with the provisions of Order 38, Rule 5 of the Code. The respondent has carried several authorities in support of its contention that in considering a prayer for an order in the nature of attachment before judgment sought under Section 9 of the 1996 Act the relevant considerations as applicable to Order 38, Rule 5 of the Code would apply. There are judgments of this Court in such regard that the respondent relies on which are reported at AIR 2010 Cal 166 and AIR 2011 Cal 37. In the second of the judgments, a Division Bench of this Court emphasised on the expression "and the Court shall have the same power for making orders as it has for the purpose, and in relation to any proceedings before it" appearing at the end of Section 9 of the 1996 Act to infer therefrom that the general principles as recognised in the Civil Procedure Code had to be applied even to a case for