IMPORTANT POINT
The Court has plenary powers under section 9 of the Arbitration and Conciliation Act, 1996 to grant interim relief and secure the amount in dispute in arbitration.

JUDGMENT :

Moushumi Bhattacharya, J.

1. Both the applications have been filed under section 9 of the Arbitration and Conciliation Act, 1996 for interim relief. In one of the applications, the petitioner has prayed for a restraint on the respondent from alienating or creating any third party rights in respect of the equipments supplied by the petitioner to the respondent under four Purchase Orders issued by the respondent. In that application, the petitioner has also prayed for a direction on the respondent to furnish security for Rs. 53,07,352/-. The relief sought for in the other application is substantially the same except that the petitioner has claimed security of Rs.7,93,268/- from the respondent.

2. The other difference is that the respondent in AP 71 of 2023 has taken a point of pecuniary jurisdiction in that the Calcutta High Court lacks jurisdiction to entertain the applications.

3. The Court proposes to dispose of the applications by way of this judgment since both the applications involve the same facts and substantially the same point of law.

AP 70 of 2023

4. The undisputed facts are that petitioner supplied 2200 units of MS Props – construction scaffolding material – on rent to the respondent under 4 Purchase Orders. The rate of rent per piece on a monthly basis is an admitted sum mentioned in the Purchase Orders. The figures mentioned in the “Rental” column is a part of the Purchase Orders and has not been disputed by the respondent.

5. The petitioner, through learned counsel, has also placed and relied on a table which contains certain facts as per the affidavit-in-opposition of the respondent. The table relates to “Duration of Use of Goods” from 12.9.2019 – 18.10.2019. A total of 2000 goods were supplied by the petitioner to the respondent by October, 2019. The chart mentions the number of goods returned by the respondent together with the dates of return and states that the respondent admittedly withheld 600 units of goods. The dates of supply and of return have reference to specific pages in the affidavit-in-opposition filed by the respondent. Counsel has shared the chart with learned counsel appearing for the respondent.

6. The chart also contains a calculation of admitted rent for the 600 units which the respondent has withheld. The petitioner describes the figures as “admitted” on the basis of the calculation statement on the duration of use of goods by the respondent. The total principal amount due has been calculated at Rs. 22,29,120.00/- as the rent for the balance withheld 600 goods from November, 2019 – July, 2023 + the rent for 900 goods used from November, 2019 – February, 2020 and for 500 goods used from November, 2019 – June, 2020. The calculation also adjusts Rs. 4,90,880.00/- received by the petitioner from the respondent.

7. It is relevant to note that the petitioner’s claim in the arbitration is in excess of Rs. 70 lacs on account of the withholding of the petitioner’s goods by the respondent and the disposing of and alienating of the goods by the latter.

8. Learned counsel appearing for the respondent has objected to the maintainability of the application on the ground that the application was made after constitution of the arbitral tribunal. However, the records show that a Division Bench of this Court entertained the section 9 application by its order dated 2nd March, 2023 and passed an injunction on the respondent from transferring or alienating the material leased to the respondent for 3 months from the date of the order. The respondent, significantly did not challenge this order.

9. Therefore, the objection made under section 9(3) of The Arbitration and Conciliation Act, 1996 on the Court not having jurisdiction to entertain an application under section 9(1) after constitution of arbitral tribunal, is no longer acceptable : Arcelor Mittal Nippon Steel v. Essar Bulk Terminal Limited; (2022) 1 SCC 712. It is also relevant that the respondent did not object to the maintainability of the application be