IMPORTANT POINT
The main legal point established in the judgment is the wide powers of the court under Section 9 of the Arbitration and Conciliation Act, 1996 to grant interim measures and protect the subject matter of arbitration.

JUDGMENT :

Krishna Rao, J.

1. This is an application under Section 9 of the Arbitration and Conciliation Act, 1996 filed by the award holder.

2. On 27th February, 2005, the petitioner and respondent entered into an agreement wherein the respondent agreed to sell the entire iron ore to the petitioner. The entire iron ore that would be excavated from the Mines as per the terms and conditions mentioned in the agreement. Pursuant to the agreement, the petitioner time to time had made payment of Rs. 1,69,99,600/-to the respondent. The respondent informed the petitioner that mining operation had not commenced and as soon as the same would commence, the petitioner would be informed. In the month of December, 2009, the petitioner came to know that mining operations of the Mines had been commenced by the respondent behind the back of the petitioner and in breach of the terms and conditions of the agreement.

3. On 24th December, 2009, the petitioner has sent a letter to the respondent expressed its apprehension that the respondent was in breach of the agreement and on 11th January, 2010, the respondent had sent a reply alleging that the agreement was void ab initio by reason of violation of Rule 37 of the Mineral Concession Rules, 1960. In the letter dated 11th January, 2010, a reference was made to two alleged letters dated 22nd June, 2007 and 1st August, 2008 to contend that the agreement was not capable of performance on account of legal impossibility and impediment and that as per books of the respondent, an amount of Rs. 1,67,50,000/-was outstanding as advance, which was purported to be returned by a cheque dated 1st August, 2008.

4. Inspite of several correspondences between the parties, the matter was not settled and on 22nd August, 2011, the petitioner referred the disputes to arbitration and appointed a sole Arbitrator by requesting the respondent to give consent to such appointment but the respondent refused to comply with its obligations in terms of the arbitration agreement.

5. Neither the respondent come forward for appointment of Arbitrator nor has allowed the petitioner to carry out the mining operation, the petitioner has filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 praying for interim relief being AP No. 922 of 2011. In the affidavit-in-opposition along with supplementary affidavit, the respondent has submitted that the respondent was not carrying any Mines in view of the restrictive orders of the concern authority and on the said statement of the respondent, this Court disposed of the application by recording the submissions of the respondent and directing the respondent to issue notice upon the petitioner, at least seven days in advance, before the respondent commences its mining operation.

6. In the meantime, the petitioner has filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 being AP No. 1025 of 2011 and during the pendency of the said application, the respondent has issued a letter on 21st March, 2012 informing that the respondent would be commencing mining operations on and from 28th March, 2012. On receipt of the said communication, the petitioner has again filed an application under Section 9 of the Act of 1996, being AP No. 245 of 2012. By an order dated 29th March, 2012, the respondent was restrained from selling any part of the extract from its relevant Mines in Jharkhand in any manner without first offering the entire extract to the petitioner in terms of the agreement. Being aggrieved with the order, the respondent has preferred an appeal being APOT No. 184 of 2012 and by a judgment dated 9th May, 2012, the Hon’ble Appellate Court modified the order of this Court and clarified that the order of this Court as well as the order of the Appellate Court shall be tentative and it would not be binding at the time of hearing of the arbitration proceeding or at the time of final hearing of the interlocutory application. The petitioner being aggrieved