The main legal point established in the judgment is that the discretionary power of the Court should be exercised on sound principles and not mere technicalities, and that cases should be decided on merits to avoid depriving parties of the opportunity to have their case examined on merits.

M. Venugopal, J.

1. The Appellant/Applicant/Respondent has preferred the instant Original Side Appeal as against order, dated 30.04.2014, in A.No.3086 of 2014 in A.No.391 of 2014, passed by the Learned Single Judge.

2. According to the Learned Senior Counsel for the Appellant/Applicant, the impugned order passed by the Learned Single Judge, in A.No.3086 of 2014 in A.No.391 of 2014, dated 30.04.2014, is contrary to law and materially an irregular one.

3. It is the contention of the Learned Senior Counsel for the Appellant that the Learned Single Judge ought to have allowed A.No.3086 of 2014 praying to set aside the order of an attachment inasmuch as the same was a non speaking order.

4. Added further, the main plea projected by the Learned Senior Counsel for the Appellant/Applicant/Respondent that the Learned Single Judge had failed to consider an important fact that the Appellant/Applicant's Company Board meeting could not be held due to the non- availability of its Directors, as they were travelling and in fact, the Board Meeting was convened only on 14.03.2014 and one of its Director was given the authorisation for representing the company.

5. The Learned Senior Counsel for the Appellant vehemently contends that the Application praying to set aside ex parte order of attachment even on the very first day of listing of the Application and without appreciating vital fact that his earlier order was not passed on merits but because of the prime fact that no counter was filed.

6. Lastly, it is the submission of the Learned Senior Counsel for the Appellant that the Learned Single Judge should have considered the objections of the Appellant/Applicant on merits before dismissing A.No.3086 of 2014.

7. The Learned Counsel for the Appellant/Applicant/Respondent relies on the Division Bench Judgment of this Court, dated 27.07.2011, in O.S.A.No.231 of 2011, whereby and whereunder, in paragraph 9, it is, inter alia, stated as follows:

“9. ... The appellant has not stated the reasons for filing the present application under Section 9 of the Act before the arbitral proceedings commenced. In fact, a notice was issued by the appellant expressing their intention to invoke the arbitration proceedings and also appointed an arbitrator. After such appointment of an arbitrator, the appellant could have ventilated their grievance before the arbitrator appointed by them and not before this Court. It is well settled law that security can be ordered only in cases where the other party is likely to abscond or there is positive evidence to show that the other party is taking steps to dispose of the property with an intention to deceive or defeat the decree or award to be passed by the Courts or Tribunal. In this case, the respondent being a company, it is not possible for them to abscond so easily or they could dispose of their asset immediately. Therefore, the conclusion arrived at by the learned Judge that the present application has been filed by the appellant only to pressurise the respondent to settle the amount is well founded. It is needless to mention that filing of an application under Section 9 of the Act can be entertained by this Court only in exceptional case and this is not a case where this Court find it fit and proper to entertain the application of the appellant.”

8. Conversely, it is the submission of the Learned Counsel for the Respondent/Respondent/Applicant that the Appellant/Applicant was served with the Court Notice in A.No.391 of 2014 and also, the Private Notice was served on 25.01.2014.

9. As such, it is contended on behalf of the Respondent/ Respondent/Applicant that the Appellant/Applicant/Respondent had slept over the matter and in fact, when A.No.391 of 2014 filed by the Respondent/Respondent/Applicant [praying for passing of an order by this Court in directing the Appellant/Applicant/Respondent to furnish security for a sum of Rs.15,28,717/-etc.] came up for hearing before this Court on 17.03.2014, in the cause list o