1. The decision rendered by Vinod Kumar Sharma, J., in Hinduja Leyland Finance Limited vs. Jaffer Khan and Others {2013 (2) LW 401}, holding that the practice of Finance Companies/Banks seeking the appointment of an Advocate Commissioners to seize and take possession of the hypothecated vehicles and equipment, is not a remedy envisaged under Section 9 of the Arbitration and Conciliation Act, has given rise to an impression as though such a procedure is never to be read into Section 9 at all under any circumstances. Therefore, when similar applications came up before the other learned Judges of this Court, the decision in Hinduja Leyland Finance, was taken to be a boulder on the track. Hence, when a batch of applications came up, the learned counsel appearing for various Finance Companies requested me to steer clear of the doubts raised by or in Hinduja Leyland Finance.

2. Since I am not dealing with individual cases, but merely testing a pure and simple legal question on the scope of Section 9 of the Arbitration and Conciliation Act, 1996, I shall not go into the factual details. However, it is necessary to state that I am proceeding on the basis of certain presumptions, which if present in a given case alone, would attract the principles of law that I seek to decode here. The presumptions are (i) that there is a valid agreement between the financier and the borrower, under which the purchase of a vehicle or equipment by the borrower is financed by the financier; (ii) that under the agreement, the vehicle or equipment is hypothecated to the financier; (iii) that there was a default by the borrower in making payment of the instalments stipulated under the agreement. I propose to examine the issue on hand, only in respect of cases in which the factual matrix contains the above 3 fundamental elements. But a brief prelude in imminent.

PRELUDE

3. At the outset, it should be pointed out that the Arbitration and Conciliation Act, 1996 merely enables the parties to a contract to have their disputes adjudicated by a Forum other than the normal Civil Courts. But at the same time, the Act recognises the fact that without the normal Civil Courts lending a helping hand to such alternative Fora, the enforcement of decisions rendered by them would remain a distant dream. The provisions of Section 9 (interim measures), Section 27 (Court assistance in taking evidence) and Section 36 (enforcement of awards falling under Part-I), are all instances where the indispensability of Civil Courts is recognised in the Statute. In respect of protection and preservation of the subject matter of a dispute pending arbitration and in respect of enforcement of the awards, the Arbitration Act, makes the normal Civil Court, a coalition partner of the Arbitral Tribunal. While Section 36 of the Arbitration and Conciliation Act, 1996, incorporates into the Arbitration Act, the provisions of Sections 36 to 74 and the provisions of Order XXI of the Code of Civil Procedure, to the extent that they could be invoked, the provisions of Section 9 can be said to have inbuilt within it, the provisions of Section 94 as well as Orders XXXVIII, XXXIX and XL of the Code of Civil Procedure.

4. If we have a careful look at the language employed in Section 9, it is seen that Section 9(i) of the Arbitration Act, is similar to the provisions of Order XXXII though both are not exactly identical. While Order XXXII of the Code contains detailed procedure relating to the next friend of a minor plaintiff, the appointment of a guardian for a minor defendant, the retirement or removal of such next friend or guardian etc., section 9(i) of the Arbitration Act, broadly enables the Court to appoint a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings.

5. Similarly, Section 9(ii) of the Arbitration Act, lists out the various types of the interim measures that could be ordered by a Court. A comparison of Clauses (a), (b), (c), (d) and (e) of Sect