The main legal point established in the judgment is the requirement for extraordinary circumstances and evidence to grant a freezing injunction under Section 9 of the Arbitration and Conciliation Act, 1996.

SANJIV KHANNA, J, J.

( 1 ) M/s. Rite Approach Group Ltd (hereinafter referred to as the appellant, for short) has filed the present Appeal against the Order dated 25th May, 2004 passed by the learned Single Judge rejecting it's application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, for short ).

( 2 ) LEARNED counsel for the appellant has relied upon the decision of the Court of Appeal in the case of Mareva versus International Bulkcarriers reported in (1980) 1 All. ER 213 and submitted that M/s. Rosoboronexport (hereinafter referred to as the respondent, for short) is liable to pay to the appellant, commission of Rs. 28. 8 crores on sale of six helicopters by M/s Kazan Helicopters Ltd. to border Security Force. Reliance is placed upon agency agreement between the appellant and M/s Russian Technologies and it claimed that the respondent herein has taken-over the said company. It is submitted that the Government of India should be injuncted by Mareva injunction from making full payment of the two helicopters to the respondent and the respondent should be restrained from dealing with the said helicopters.

( 3 ) DETAILED facts have already been noted by the learned Single Judge in the impugned Order and are therefore not reproduced. However, the learned Single judge in the impugned Order has noted that the Government of India is not a party to the so called arbitration clause existing between the appellant and the respondent. Contention of the respondent that the respondent was not an agent of the appellant, dealings between the appellant and M/s Russian Technologies were separate and independent and agency agreement is not binding on the respondent and other pleas were raised.

( 4 ) LEARNED Single Judge has noted that the number of helicopters and their models and that the supplies made to the Ministry of Home Affairs did not tally with the agreement between the appellant and M/s Russian Technologies, which was in respect of 16 helicopters to be supplied to Ministry of Defence. Moreover, the Ministry of Defence had in the agreement specifically stipulated that there shall be no agent for the purpose of intercession, facilitation or for in any way recommendation to the Government of India or any of the functionaries of the Government. Learned Single Judge further noticed that the respondent is a state owned undertaking of the Government of Russia and therefore has sufficient assets to satisfy any decree in favour of the appellant. Lastly, it was observed that provisions of Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) or conditions stipulated therein can be read into Section 9 of the Act but the strict preconditions specified in the said provision were not satisfied in the present case. Learned single Judge relied upon the case of M/s. Global Company versus National fertilizers Ltd. Reported in AIR 1988 Delhi 397 and an unreported judgment of the Bombay High Court in the case of National Shipping Company versus Sentrans industries Limited, in Appeal No. 852/2003

( 5 ) WE need not enter into detailed controversy as the respondent has filed an affidavit enclosing therewith letter dated 19th August, 2005. In this letter, it has been specifically stated that the respondent has already received the entire money from the Government of India towards supply/sale of the two helicopters. The aforesaid letter was filed along with affidavit dated 7th November, 2005. Learned counsel for the appellant, in these circumstances, took repeated adjournments and at the time of hearing, filed in the Court, a copy of the affidavit dated 2nd March, 2007. In this affidavit it is stated that to the best of the knowledge and belief of the appellant, the respondent has not received money from the Government of India under the Agreement dated 14th April, 2000 and Letter of Credit of June, 2003 bearing No. 0096103dc028270. This affidavit as