APPLE FINANCE LTD Vs. GAYATHRI SUGAR COMPLEX LTD

JUDGEMENT

(1.) THIS is an application under Section 9 of the Arbitration Act seeking appointment of an Advocate Commissioner to seize; take possession of the machinery mentioned in the schedule and available in the custody of the respondent; to bring them to sale and to deposit the amounts so realised into the accounts of this application. On 22.12.2003, a learned Judge of this Court appointed a retired District Judge as the Advocate Commissioner to inventories the articles available in the custody of the respondent; take photographs of those articles and file a report. The Advocate Commissioner had thus taken symbolical possession of the properties.

(2.) MR.G.Desappan, learned counsel for the respondent would submit that though it is a settled position in law that the application under Section 9 of the Arbitration Act can be moved before or during or after the arbitral proceedings, yet the applicant should not keep quiet indefinitely after obtaining the interim order before commencement of the arbitral proceedings. According to him, a duty is cast upon the applicant to have the matter referred to the arbitrator within a reasonable time from the date of obtaining the interim order and if there is any failure on the part of the applicant in this behalf, then the Court is under a legal duty to recall the earlier order. For this purpose, the learned counsel relies upon the judgment in Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 2 CTC 208 : 2004 AIR SCW 366. It is the further submission of MR. G. Desappan that till date, though the application was filed in April, 2003, the applicant had not taken any steps at all to have the dispute referred to an arbitrator. MR.Karthik Seshadri, learned counsel for the applicant would counter this argument by stating that to pass an order under Section 9 of the Act, there is no need that arbitration proceedings must be actually pending on the date of filing of the application. He admits that his client had not commenced the arbitral proceedings till date.