The exercise of a secured creditor's right to enforce a security interest under the SARFAESI Act is not arbitrable, and therefore, an arbitral tribunal cannot interdict and set aside sale notices issued under the SARFAESI Act.

JUDGMENT

Anup Jairam Bhambhani J.

The present appeals have been filed by M/s. Indiabulls Housing Finance Ltd. and M/s. Edelweiss Asset Reconstruction Company Ltd. under section 37(2)(b) of the Arbitration and Conciliation Act, 1996 ('A&C Act. for short) impugning orders dated 11.06.2022 and 30.08.2022 made in three separate arbitral proceedings by the learned Sole Arbitrator. The respondents M/s. Shipra Estate Ltd., M/s. Shipra Hotels Ltd. and M/s Shipra Leasing Pvt. Ltd., are claimants before the (same) learned Arbitrator. The impugned orders have come to be passed by the learned Arbitrator on applications filed by the respondents under section 17 of the A&C Act, whereby they had sought maintenance of status quo in relation to the securities provided by them against loans availed from appellant No.1, who (latter) is the 'secured creditor.. For sake of convenience, the particulars of the appeals being decided by this common judgment as also the respective impugned orders are tabulated below :

2. By way of impugned order dated 11.06.2022, made in the first set of applications under section 17 of the A&C Act, the learned Arbitrator had set-aside Sale Notice dated 29.04.2022 issued by appellant No.1 under section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act. for short) read with section 8(6) of the Security Interest (Enforcement) Rules, 2002 ('SARFAESI Rules. for short) seeking to enforce their 'security interest. in "Shipra Mall" situate at Plot No. 9, Vaibhav Khand, Indirapuram Scheme, Ghaziabad, Uttar Pradesh ('Mall Asset. for short). Order dated 11.06.2022 became subject matter of an earlier round of proceedings before this court by way of Arb. Appeal (Comm.) Nos. 36/2022, 37/2022 and 38/2022, which were disposed-of vide order dated 08.07.2022. Those arbitration appeals have subsequently been sought to be revived by way of I.A. Nos. 14180/2022, 14179/2022, and 14181/2022. Since this court proposes to deal with all the appeals together, the applications are allowed; the appeals bearing Arb. Appeal (Comm.) Nos. 36/2022, 37/2022 and 38/2022 are taken on Board.

3. By way of impugned order dated 30.08.2022 made in subsequent applications under section 17 of the A&C Act, which also sought to restrain petitioner No.1 from creating any third-party rights in the Mall Asset, the learned Arbitrator has clarified that his order dated 11.06.2022 " ...continues to apply", thereby again prohibiting enforcement of the security interest in the Mall Asset.

4. A brief reference to the relevant portions of the orders made by the learned Arbitrator and by this court in the earlier proceedings would be helpful at this point :

Impugned order dated 11.06.2022 made by the learned Arbitrator

"35. ... In these circumstances, the Tribunal interdicts and sets aside the Notice of Sale of the Claimant's asset - the Shipra Mall situated at Plot No. 9, Vaibhav Khan, Indirapuram, Ghaziabad issued by Respondent No. 1 under Section 13(4) of the SARFAESI Act, till 7thJuly, 2022 to await the decision/direction of the Hon'ble Division Bench in FAO (OS)(Comm) No. 78-80 and 118 of 2021. Application under Section 17 is decided accordingly. But the pr