The main legal point established is that the court will not grant interim protection unless the applicant proves a prima facie case and balance of convenience in their favor.

P.JYOTHIMANI,J.

1. This application is filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for brevity, "the Act") for a direction against the respondent to furnish security for a sum of ` 1 Crore, failing which to attach the property described in the schedule.

2.1. The respondent company, which has proposed the development of a property situated at Navaloor Village into an IT Park in the name of Pacifica Tech Park with office and commercial spaces, and the applicant, on negotiation, have entered into a lease deed dated 18.1.2008, by which the applicant agreed for taking on lease a super built up area of approximately 24513 sq.ft. in the ground floor of the building bearing No.GF-1 for nine years to run a Food Court named "Planet Yumm". The said lease deed was entered based on a Term Sheet dated 23.10.2007. The portion of the lease, as stated above, also included 5 car parks in the basement/stilts and the initial period of lease was three years. It is stated that the commencement of lease is based on the completion of construction by the respondent and obtaining Completion Certificate and to meet the condition of a minimum 5000 number of employees in the IT Park.

2.2. Even though lease was to commence on 15.4.2008 and subsist till 15.4.2011, there is no actual commencement of lease due to the reason that the respondent company has not performed its part of the obligation. According to the applicant, the applicant was not given possession of the portion. It is the case of the applicant that the applicant is entitled to take possession only after the Completion Certificate is obtained by the respondent from the competent authority and such completion certificate has not been obtained by the respondent and there is no intimation about the same. It is the case of the applicant that the obligation of the applicant to pay rent has also not come into effect due to the above said reason and in view of the fact that minimum 5000 number of employees guaranteed by the respondent are not available, according to the applicant, there is a violation of the terms agreed in that regard.

2.3. It is stated that the applicant company has deposited ` 1 Crore towards the Interest Free Security Deposit in the following manner: (a) a sum of ` 25 Lakhs on 27.10.2007, and (b) a sum of ` 75 Lakhs on 13.2.2008, both by cheques. It is the case of the applicant that since the respondent has failed to perform its part of the obligation, the respondent is under an obligation to return the deposit amount and the respondent is deliberately not giving effect to the lease. According to the applicant, there is a violation of express and implied terms of contract and for more than two years possession has not been handed over, while the respondent is enjoying the deposit amount. It is stated that the respondent has refused to return the advance amount.

2.4. It is stated that the respondent has claimed rent from 15.7.2008 to 14.8.2008 vide invoice dated 31.7.2008, which was replied by the applicant on 31.7.2008 stating that the IT Park is not functional and there are only meagre 300 people working, while the agreed minimum number of persons is 4000, and therefore, according to the applicant, the lease only remains in paper and has not been given effect to and the respondent has flouted the spirit of the contract by frustrating the object in not providing facility of reaching minimum 5000 numbers to run the Food Court.

2.5. It is stated that as per Clause 37 of the lease deed, when a dispute arise, the parties have agreed to refer the dispute to a Sole Arbitrator to be appointed by the applicant and the respondent and according to the applicant, the applicant is taking steps to initiate arbitration proceedings for recovery of the amount.

2.6. It is stated that the lease deed was entered at Chennai, the deposit amount was made at Chennai and the applicant has issued a notice on 18.7.2009 calling upon the respondent to refund the Inter