ORDER

Chandra Dhari Singh, J. (Oral)

I.A. 9476/2023 (Exemption)

Exemption allowed subject to just exceptions.

The application stands disposed of.

ARB. A. (COMM.) 22/2023 & I.A. 9475/2023

1. The present appeal under Section 37(2) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the Act") has been filed against the order dated 15th February, 2023 passed by the Arbitral Tribunal seeking the following reliefs:

"a. Allow this present appeal and set-aside the impugned order dated 15.02.2023 passed by the Arbitral Tribunal;

b. Grant interim custody of the documents/records of the Appellant currently in wrongful possession of the Respondent;

c. Grant interim protection from destruction or alteration of any file/cartons of the Appellant currently in wrongful possession of the Respondent; and

d. Pass such other and further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. The learned counsel appearing for the appellant submitted that the said order was passed on appellant's application under Section 17 of the Act seeking interim custody and protection of its records/documents and that the present case has arisen out of "Records Services Management Agreement" (hereinafter referred to as "the agreement") dated 1st April, 2005 which was renewed biennially. It is further submitted that in furtherance of the said agreement, appellant has kept and stored 17,120 cartons containing sensitive and confidential files/records with the respondent for safe custody at different locations of the respondent.

3. It is submitted on behalf of the appellant that the appellant requested the respondent through email for return/permanent retrieval of their records lying at various locations of the respondent as per the agreed rate per carton/box vide renewal letter dated 26th October 2017. However, the respondent did not return the records of the appellant. Subsequently, vide e-mail dated 7th February, 2019, the appellant terminated the agreement w.e.f. 28th February, 2019. It is further submitted that despite such termination, the respondent is in continued possession of its documents/records which are urgently required by the appellant for several purposes.

4. It is submitted on behalf of the appellant that, the respondent initiated the arbitration proceedings in which the appellant duly participated. It is contended that during such proceedings, appellant filed an application under Section 17 of the Act seeking interim custody and protection of its documents/records. Vide order dated 1st April, 2022 the Arbitral Tribunal dismissed the said application on the ground that the parties were at consensus and that there was a great disparity as to the number of cartons of appellant in respondent's custody. The said order of the Arbitral Tribunal was challenged by the appellant before this Court in Arb. A. (Comm.) No. 21/2022 and vide order dated 11th May, 2022, this Court allowed the appellant to pursue the alternative proposals to resolve the impasse between the parties.

5. It is submitted that the respondent filed its Evidence Affidavit and an application under Section 23(3) of the Act on 21st May, 2022, seeking amendment to the Statement of Claims whereby the respondent adhered to the facts stated by the appellant thus removing any incongruity. Subsequently, the appellant agreed to the terms of the respondent and filed another application under Section 17 of the Act dated 20th June, 2022 before the Arbitral Tribunal seeking the interim custody of its cartons during the pendency of the arbitral proceedings. The respondent vehemently opposed the said application. The Arbitral Tribunal vide order dated 15th February, 2023 dismissed the appellant's application under Section 17 of the Act.

6. It is contended that the appellant has approached this Court against the order dated 15th February, 2023. It is asserted that the Arbitral Tribunal has wrongly rejected the application under Section 17 o