The main legal point established in the judgment is that an order under Section 9 of the Arbitration and Conciliation Act, 1996, for requiring security or attachment of properties can only be passed if the party seeking the order has made out a case ex facie for obtaining such an order, and specific and supported allegations in the affidavit are necessary to support contentions.

M. Venugopal, J.

1. The Appellant/Applicant has focussed the instant Original Side Appeal as against the order, dated 09.04.2013, in Application No.268 of 2013, passed by the Learned Single Judge, in dismissing the said Application.

2. The Learned Single Judge, while passing the common order in A.Nos.111, 268 and 360 of 2013, on 09.04.2013, in paragraph 15, has observed that 'The averments made by the applicant in mechanical manner does not make out any case for furnishing of security, when the loan is already secured, and it shall be open to the applicant to enforce the security after the award attains finality' and finding no merit and ultimately, dismissed the Applications.

3. The Learned Counsel for the Appellant/Applicant contends that the order of the Learned Single Judge in dismissing the A.No.268 of 2013 dated 09.04.2013 requires reconsideration because of the reason that the said order overlooks the established legal principles touching upon the creation and enforcement of Hypothecation of Goods.

4. The Learned Counsel for the Appellant/Applicant submits that the Appellant/Applicant has categorically averred in Application No.268 2013 that the Respondent was arranging to sell of his immovable properties.

5. The Learned Counsel for the Appellant/Applicant projects an argument that an Application under Section 9 of the Arbitration and Conciliation Act, 1996 is not controlled by the provisions of Order XXXVIII Rule 5 of the Civil Procedure Code.

6. In effect, the contention of the Learned Counsel for the Appellant/Applicant is that the Arbitration and Conciliation Act, 1996 specifically provides powers to a Court of Law under Section 9 of the Act to pass an order of interim measure and in fact, the language of the ingredients of Section 9 of the 1996 Act is totally different from Section 18 of the Arbitration Act, 1940 or the ingredients of Order XXXVIII Rule 5 of the Civil Procedure Code.

7. Expatiating his submissions, the Learned Counsel for the Appellant/Applicant contends that Section 9 of the 1996 Act is so worded that a Court of Law has powers to grant interim measures of protection.

8. The stand taken on behalf of the Appellant/Applicant is that in an Application, under Section 9 of the Arbitration and Conciliation Act, 1996, there is no need for filing of an affidavit containing the particulars regarding the conduct of borrower in taking action to defeat the claim of the creditor as mandatorily set out under Order XXXVIII Rule 5 C.P.C.

9. According to the Appellant/Applicant, an apprehension in all the cases can only be that the other side is taking steps to delay or defeat or obstruct execution of the decree. As such, it cannot be said that the averments in the affidavit in Application No.268 of 2013 are made in a routine and mechanical fashion.

10. The Learned Counsel for the Appellant/Applicant contends that the Arbitration and Conciliation Act, 1996 is not intended to provide for passing of an interim orders on the lines of Order XXXVIII Rule 5 C.P.C. or Section 18 of the Arbitration Act, 1940. Per contra, it is the plea of the Appellant/Applicant that the 1996 Act specifically provides power to Court under Section 9 of the Act in passing an interim order.

11. The Learned Counsel for the Appellant/Applicant while winding up his argument submits that the Learned Single Judge has committed an error in making an observation in the impugned order in Application No.268 of 2013 dated 09.04.2013 that 'there is no material on record to show any overt act on the part of Respondent showing steps have been taken to dispose of the properties'.

12. At the outset, this Court points out that it is the case of the Appellant/Applicant that the Respondent approached it during March, 2012 with a request to extend loan facility for purchase of a MARUTI RITZ bearing Chassis No.MA3FDEBIS00368689 and fitted with Engine No.D13A1785079.

13. It is not in dispute that a Loan Agreement dated 03.03.2012 bearing Loan Contract No