RAJIV SAHAI ENDLAW, J.

Petition has been preferred under Section 9 of the Arbitration Act, 1996 for interim measures. The petitioner is stated to be involved in an International Commercial Arbitration of the International Chamber of Commerce with the respondents No. 1 and 2. The senior counsel for the petitioner informs that the said arbitration is at a final stage and the award has been reserved. It is informed that the petitioner has monetary claims against the respondents No. 1 and 2. The respondent No. 1 is a corporation incorporated in China and respondent No. 2, an Indian Company, is stated to be a subsidiary of the respondent No. 1. M/s. ITI Limited has been impleaded as the respondent No. 3. It is stated that monies are due from the respondent No. 3 to the respondents No. 1 and 2.

The petitioner had earlier filed another petition under Section 9 of the Act against the same respondents and which was registered as OMP. No. 359/2006. Vide ex parte order dated 4th August, 2006 in OMP 359/2006, on the petitioner expressing apprehension that if the respondent No. 3 releases all monies due to the respondents No. 1 and 2, the petitioner will be left with no means to recover the monies ultimately awarded to it, the respondent No. 3 was restrained from releasing to the respondents No. 1 and 2 the amount then stated to be due to the petitioner from the respondents No. 1 and 2. The respondents No. 1 and 2 failed to appear in OMP. No. 359/2006 in spite of entering appearance and were ordered to be proceeded against ex parte. The said OMP was disposed of vide order dated 27th August, 2007. Though the said order notices that the respondent No. 3 is a third party to the contract, however, on the statement at bar of the counsel for the respondent No. 3 that the respondent No. 3 shall not release the payment to the respondents No. 1 and 2 in terms of prayer (e) of OMP 359/2006 without prior permission of the court or till the disposal of the arbitration proceedings pending in Singapore, the ex parte order was made absolute and the OMP was disposed of. The said order remains in force.

The petitioner has now moved this OMP for the relief of restraining the respondent No. 3 from releasing the payments in the sum of USD 3476258 to the respondent No. 1 and for directing the respondent No. 3 to deposit the said sum and/or its Indian equivalent in this court. The first of the aforesaid reliefs is squarely covered by the relief granted in the earlier OMP. The petition has been urged only on the ground of direction to the respondent No. 3 to deposit the amounts in this court.

The respondent No. 3 has filed reply in opposition to the petition and the grant of the relief aforesaid and has pleaded -

(i) that it is not a party to the agreement containing the arbitration clause and not concerned with the dispute between the petitioner on the one hand and the respondents No. 1 & 2 on the other hand and no petition under Section 9 of the Act lies against it, especially when the main/principle relief claimed in the petition is against a non-party to the arbitration agreement;

(ii) that till the award for any amount in favour of the petitioner, the petitioner cannot be said to be entitled to any amount from the respondent No. 2 and hence not entitled to deposit in this court of any amount;

(iii) that even in the earlier OMP No. 359/2006 the petitioner had sought the relief of deposit of the monies due from the respondents No. 3 to the respondents No. 1 & 2 in this court and the respondent No. 3 had contested the said relief inter alia on the ground that it was a sick company within the meaning of Sick Industrial Companies Act, 1985 (SICA) and was before the BIFR and petitioner in the garb of the relief under Section 9 of the Act could not circumvent the provisions of SICA and further that any order of deposit of the monies in this court would jeopardize the scheme of rehabilitation formulated by the operating agency appointed by the BIFR for reha