JUDGMENT :

1. Heard Sri Vivek Saran, learned counsel for the appellant and Sri Rajesh Chandra Dwivedi for the respondent. With their consent, the instant appeal is being disposed of finally at this stage itself.

2. The instant appeal is directed against the order dated 17.5.2022, passed by Presiding Officer, Commercial Court, Varanasi, in Arbitration Misc. Case No. 4/2022, allowing the application of the respondent, purportedly filed under Section 9 of the Arbitration and Conciliation Act, 1996. The appellant has been directed to pay a sum of Rs. 12,72,783/-to the respondent within one month, along with interest @ 7% per annum, since 24.1.2022, by way of damages. Thereby the application under Section 9 is "decreed with cost".

3. The brief facts of the case are that a work order dated 17.12.2018 was issued by the appellant in favour of the respondent for supply of bottles of mineral water. The respondent had deposited Rs. 30,000/-as security money, in terms of the work order. The work order was for limited period, till permanent arrangement in this behalf is made by the Headquarter at Lucknow.

4. The case of the respondent is that it had supplied the goods in pursuance of the contract, but a sum of Rs. 20,90,744/-was due and payable to it. The appellant had declined to pay the same by its letter dated 24.1.2022. The respondent accordingly, approached the Commercial Court by way of an application, praying inter alia for a direction to the appellant to make payment of the remaining sum of Rs. 20,90,744/-, plus interest @ 8% per annum and cost of litigation.

5. The application does not specify the provision under which it was filed. However, it seems that it was registered as a miscellaneous case and has been decided, treating it to be an application filed under Section 9 of the Arbitration and Conciliation Act, 1996. The appellant had filed objection to the arbitration application, specifically raising the issue that the rates at which the goods were supplied, were contrary to the rates prescribed by the Headquarter. Consequently, certain deductions were made and that the claim of the respondent for payment of any additional sum is not sustainable. The appellant also mentioned that only a sum of Rs. 3,16,363/-is due and steps were being taken to make payment of the said amount.

6. Learned counsel for the appellant submitted that the directions issued by the court below in purported exercise of power under Section 9 of the Act are without jurisdiction. It is urged that the power under Section 9 of the Act, cannot be exercised to allow the entire claim, or to decide the issues on merits. It is also submitted that there is no indication in the application filed by the respondent, nor in the impugned order, that there was any arbitration clause, or any intention on part of the respondent to commence the arbitration proceedings.

7. Learned counsel for the respondent fairly stated that he is not in position to defend the order.

8. Section 9 of the Act relates to interim measures, etc. by Court and reads as follows: -

9. Interim measures, etc., by Court.— (1)] A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court—

(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:—

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be t