ORDER

This application has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 seeking for a direction to the 2nd respondent to issue an addendum to the notice of sale through private treaty dated 09.11.2022 and bring on record the applicant's charge over the 1st respondent's property at Door No.383, Velacherry Tambaram Main Road, Velacherry, Chennai - 600 042 and further to secure the applicant's interest to the tune of Rs.3,13,84,043/- (Rupees Three Crores Thirteen Lakhs Eight Four Thousand Forty Three only) inclusive of interest at 18% p.a. calculated on the principal amount until 24.01.2023 together with future interest, in the event of realisation of sale proceeds over and above the claim of 2nd respondent against the 1st respondent by way of sale of the property at Door No.383, Velacherry Tambaram Main Road, Velacherry, Chennai - 600 042.

2. The applicant had agreed to purchase the aforementioned property from the 1st respondent under a Memorandum of Understanding dated 19.05.2019. The applicant has terminated the Memorandum of Understanding dated 19.05.2019 on the ground that the 1st respondent has committed a breach of the said Memorandum of Understanding. In view of the termination, the applicant has sought for refund of the advance amount paid to the 1st respondent under the Memorandum of Understanding dated 19.05.2019. There is an arbitration clause in the Memorandum of Understanding dated 19.05.2019. The applicant has already initiated arbitration in terms of the arbitration clause and a sole arbitrator has acted upon the reference. Before the sole arbitrator, the 1st respondent has also made a counter claim. According to them, the applicant has committed breach of Memorandum of Understanding dated 19.05.2019 and they have also committed breach of the Letter of Intent(LoI), dated 08.05.2017 and the Addendum to the Letter of Intent, dated 26.10.2017. It is an undisputed fact that in the arbitration, trial has got completed and it is in the arguments stage.

3. The applicant contends that a similar relief cannot be granted by the Arbitrator under Section 17 of the Arbitration and Conciliation Act, 1996, since the relief has been sought for against a 3rd party viz., the 2nd respondent in this application.

4. As seen from the Letter of Intent dated 08.05.2017 and the Addendum to the Letter of Intent, dated 26.10.2017, the applicant was aware about the mortgage in respect of the property morefully described in the schedule to the Judges Summons, while entering into the Memorandum of Understanding dated 19.05.2019 with the 1st respondent. The applicant also came to know about the liability of the 1st respondent to the secured creditor while signing the Memorandum of Understanding dated 19.05.2019. As part of the sale consideration under the Memorandum of Understanding dated 19.05.2019, the applicant has undertaken to settle the dues of the secured creditor. The property morefully described in the schedule to the Judges Summons was brought for sale under the SARFAESI Act by the secured creditor in view of the default committed by the 1st respondent in the repayment of the amount. The property was sold under a SARFAESI sale on 03.03.2023 as seen from the sale certificates issued by the secured creditor viz., the 2nd respondent. Certain monies have been realised from the said sale of the property. According to the applicant excess money is now lying with the 2nd respondent and in due course, the same will be paid to the 1st respondent, who is the borrower. The present application has been filed to secure the interest of the applicant as claimed in the arbitration. According to the applicant, if the excess money available with the 2nd respondent is paid to the 1st respondent, they will not have any security to recover the dues payable to the applicant by the 1st respondent which is claimed in the arbitration. However, as seen from the arbitral proceedings, the claim of the applicant is disputed by the 1st