ARBITRATION 113 existence of an agreement is alleged by one party and not denied by the other. However, conduct of party may also prove relevant for determining the question of existence of an agreement. Hence, in case of International Commercial Arbitration, Section 8 of the Act has no application. It is to be noted that Section 45 of the Act does not require filing of Charter Party Agreement (CPA) in the Court. Interim measures etc. by Court (S. 9). [1]! Section 9 provides that 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 (i) for an interim measure or 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 authorizing 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 taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. {(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.]” ((3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.]* Section 9(1) of the Act, 1996 is modelled on Article 9 of the Model Law and identical to Section 41(b) of the Act, 1940. Section 9(1) deals with 1, Section 9 re-numbered as sub-section (1) thereof by Act 3 of 2016, Sec. 5 (w.ref. 23-10-2015). 2. Ins, by Act 3 of 2016, Sec. 5 (w. 3. Ins, by Act 3 of 2016, Sec. 5 (w. 23-10-2015). f. 23-10-2015).4 ALTERNATIVE DISPUTE REDRESSAL SYSTEM interim measures which can be awarded by the courts. An application to g court in respect of interim measure can be made by a party before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced. Section 9(1) empowers the courts to grant interim measures at its discretion, thus it is discretionary power of the court, the Court while considering an application made by a party, would consider the various aspects of the matter such as whether prima facie case has been made out, whether the loss would be huge or beyond economic repair, if the suitable interim measures are not being granted. But, such measures can be granted in aid of the arbitration proceedings and not to frustrate them.’ Section 9(1) provides that an arbitral award is to be enforced in accordance with Section 36 of the Act which states that "where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court". An application to the court to grant interim measures can be made on the purposes specified under clauses (a) to (e) of section 9(1) of the Act, (i) for the appointment of a guardian for a minor or person of unsound mind for the arbitral proceeding; . (ii) to obtain custody, preservation and sale of any goods provided such goods are the subject-matter of an arbitration agreement; (iii) to cause recovery of the amount as a result of an arbitral award; (iv) to detain, preserve and inspect any property or thing which is subject-matter of an arbitration agreement, (v) to obtain interim injunction, (vi) To appoint a receiver. The aforesaid purposes to grant interim measures are contained in [clauses (a) to (e)]. Section 9 of the Act provides certain guidelines to a court and also provides grounds to the parties in an arbitration agreement. Section 9(2) provides that the arbitral proceedings shall be commenced within a period of ninety days from the date of "S. 9(1) Order" where the Court passes an order for any interim measure under Section 9(1) before the commencement of arbitral proceedings. Section 9(3) provides that that the Court shall not entertain an application for interim measure once the arbitral tribunal is constituted, unless it.finds circumstances that may render the remedy provided under section 17 inefficacious. To grant interim measures under Section 9, a court has discretionary power and this section does not specify all the interim measures. The court has to take account of every aspect of each case and also requirement of & case, This power of the courts to grant interim measures cannot be taken away by the parties by consent as it is specifically provided by the Act. 1, J & K State Forest Dept. v. Abdul Karim Wasi, AIR 1989 SC 1498, 1508-9.ARBITRATION 115 (i) Interim measures by court Wherein the parties may feel the need for safeguarding interim custody, preservation, protection, storage, sale or disposal of the whole or part of the subject-matter of the dispute or for its inspection or for samples to be taken, such matters had to be referred to the court under Second Schedule to the old Indian Arbitration Act, 1940. The new Arbitration and Conciliation Act, 1996 under Section 9 and under Section 17 enables the court and arbitrator respectively to order interim measures. Section 31(6) also empowers the arbitrator at any time during the arbitral proceedings to make an interim arbitral award on any matter with respect to which the arbitrator may make a final award. Thus, the new Act, 1996 makes provision for exercising powers as to interim measures and relating to the matter to which the arbitrator's final award may be based. (ii) Proceeding under Section 9 of the Act is maintainable only between the parties to arbitration agreement In SREI Infrastructure Finance Ltd. v. Bhageeratha Engineering Ltd. & others,’ where opposite party No. 1 being financed by the present applicant purchased equipment and entered into arbitration agreement with opposite party No. 2 for the purpose of execution of project. However, dispute arose between opposite parties No. 1 and 2 which was referred to arbitration. Subsequently, an application under Section 9 of the Act, 1996 was moved by the opposite party No. 1. It was held by the Gauhati High Court that applicant financier cannot be said to be a party to arbitration agreement between opposite parties No. 1 and 2 and therefore, he cannot seek impleadment or protection of his right under Section 9 of the Act, 1996. (iii) Power of the Court to pass interim order—Principle applicable for The Apex Court in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P.) Ltd.,’ has held that it is the well recognised principle applicable to exercise of general power to grant interim relief, including specific injunctive relief under Order 39 of the Code of Civil Procedure, 1908 and the Specific Relief Act, 1963, would be applicable to exercise the power under Section 9 of the Arbitration and Conciliation Act, 1996 and further same is the position regarding appointment of receiver. (iv) Granting of interim injunction order—what factors to be taken in consideration The Supreme Court in Transmission Corporation of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd.,° observed that the interim direction ordinarily would precede finding of a prima facie case, when existence of a prima facie case is established, the Court shall consider the other relevant factors, namely balance of convenience and irreparable injuries. In the present case 1, AIR 2009 Gau. 110. 2. AIR 2007 SC 2563. 3. (2006) 1 SCC 540.116 ALTERNATIVE DISPUTE REDRESSAL SYSTEM the High Court has noticed that the appellant has raised a dispute as regards to payment of an excess amount of Rs. 35 crores although according to the respondent a sum of Rs, 132 crores is due to it from the appellant and the appellant had been paying the amount for the last two years as per the contract. However, conduct of the parties is also a relevant factor. If the parties had been acting in a particular manner for a long time upon interpreting the terms and conditions of the contract, if pending determination of the lis, an order is passed that the parties would continue to do so the same would not render the decision as arbitrary, Section 9 of the Act, 1996 should be applied so that status quo may be directed to be maintained having regard to the fact that the parties understood the workability of the agreement in a particular manner. ____ The Supreme Court expressed the view that a writ court can also grant injunction in exercise of its power under Article 226 of the Constitution. If injunction is refused in the proceeding under Section 9 of the Act, 1996, the interim order passed in writ proceedings shall continue. (v) Invoking of Section 9 in matter relating to Bank Guarantee Wherein no prima facie case has been made for granting injunction and the petitioners have failed to make out case against the respondent restraining him from realising the arrears and dues towards licence fee by encashing the Bank Guarantees furnished by the petitioners, the request for ad-interim injunction in these cases was rejected pending disposal of the petition,' In Essar Oil Ltd. v. Indian Charge Charome Ltd.,’ regarding the question of irretrievable injustice on account of encashment of Bank Guarantee, it was neither seriously urged in the petition nor anything was placed on record to satisfy the court that there would be no possibility whatsoever for restitution of the amount so recovered after the disputes between the parties would have been adjudicated by arbitration, for which a provision existed in the agreement. If the petitioner feels that the amount under the Bank Guarantee has been wrongly recovered by the first respondent, it will be open to it to prefer a claim before the Arbitration. Therefore, it was held that the invocation of the Bank Guarantee had been in accordance with its terms, the plea of fraud set up in suppert was held lacked particulars or proof necessary to interdict encashment of the guarantee. (vi) Encashment of Bank Guarantee—When Arbitration proceedings pending In Forcast v. Steel Authority of India Lid,” it is not in dispute that a suit filed by the petitioner against the respondents, was treated as an application under Section 9 of the Arbitration and Conciliation Act, 1996. On 20th December, 1996, an order of status quo in regard to encashment of Bank . Tata Tele Services Ltd. v. Union of India, 1999 (2) Arb L.R. 76 (Del.); see also Grid Corpr- of Orissa Lid. v. Indian Charge Charome Ltd., 1998 (2) RAJ, 416 (SC). 1. 1998 (1) Arb. LR 200 (Del.). , 1998 (1) Arb. LR 210 (Del.); Duke Offshore Léd. y, Burn Standard Co. Ltd., 1999 (2) Arb. LR 511 (Bom.).ARBITRATION WW Guarantee in question was made. Subsequently, by the order dated 30th July, 1997 the status quo order was vacated and thereafter on 31st July, 1997 the respondent No. 1 invoked the Bank Guarantee in question and on 9th September, 1997, the amount of that Bank Guarantee was transferred in the account of respondent No. 1 by the Bank with the transfer of the amount of the Bank Guarantee in question O.M.P. No. 29/97 being rendered infructuous. Respondent No. 1 was one of the biggest public sector undertakings and there should not be any difficulty in recovering the amount of the encashed Bank Guarantee if the arbitral proceedings pending before International Arbitration Court were ultimately decided in favour of the petitioner and against respondent No. 1. Thus, the submission referred to above advanced on behalf of the petitioner was repelled being devoid of merit. (vii) Granting of Interim Injunction/Interim measure Whether to grant interim injunction/interim measure is a discretionary power of the court. It is to be noted that the powers conferred upon the court under Section 9 of the new Act, 1996 are wider in scope than those powers conferred upon the Arbitral Tribunal under Section 17 of the new Act, 1996. While considering the grant of interim measures, the court may see, among other things such as :— (a) whether the applicant has made out a prima facie case; (b) whether the balance of convenience is in his favour; and (c) whether he would suffer irreparable injury if such measures are not granted.’ It is settled position that interim injunction/interim measure can be granted in aiding the arbitration proceedings and not to frustrate them.” However, in guise of granting interim measures/interim injunction, the court cannot adjudicate the subject-matter of the dispute, because that task belongs to the Arbitral Tribunal and not to the court. (viii) Interim Order may be made even before commencement of arbitration proceedings The Apex Court in M/s, Sundaram Finance Ltd. v. M/s. N. India Ltd.,’ observed that Section 9 of the new Act, 1996 does not contemplate, unlike Section 20 of the Arbitration Act, 1940, a party applying to a court for appointing an arbitrator when no matter is pending before the court. Under the new Act appointment of arbitrator is made as per the provision of Section 11 which does not require the court to pass a judicial order appointing arbitrator/arbitrators. The High Court was, therefore wrong in referring to these provisions of the Arbitration Act, 1940 while interpreting Section 9 of the new Act. Under the new Act, 1996 the court can pass interim orders when the request to refer the dispute is received by the respondent as per Section 21 of the Act. The material words occurring in Section 9 are “before or during the arbitral proceedings". This clearly 1. Bans Ropan vy. Il[rd A.D.J., AIR 1993 AP. 117; see also N.V. Chowdary y. Hindustan Steel Works Construction Ltd., AIR 1984 A.P. 110. 2. d. & K. State Forest Corp. v. Abdul Karim Wasi, AIR 1989 SC 1498, 3. AIR 1999 SC 565 ; 1999 (2) SCC 479 : 1999 (1) JT 49.18 ALTERNATIVE DISPUTE REDRESSAL SYSTEM contemplates two stages when the court can pass interim orders i.e., during the arbitral proceedings or before the arbitral proceedings. There is no reason as to why Section 9 of the new Act, 1996 should not be liberally construed. Meaning has to be given to the word "before" occurring in the said Section. The court held that the only interpretation that can be given is that, the court can pass interim orders before commencement of arbitral proceedings. Any other interpretation, like the one given by the High Court, will have the effect of rendering the word ‘before’ in Section 9 as redundant, (ix) Interim Protection order—Statutory discretion under Section 9(49)(b) to be exercised judicially In National Shipping Company of Saudi Arabia v. Sentrans Industry Lid., it was observed that the party seeking protection under Section 9(iiiXb) ordinarily must place some material before the Court besides the merits of the claim that order under Section 9(ii\b) is eminently needed to be passed as there is likelihood of an attempt to defeat the award though the provisions of Order XXXVIII, Rule 1 of C.P.C. are not required to be satisfied. The statutory discretion given to the Court under Section 9(ii)(b) must be exercised judicially in accordance with the established legal principles and having regard only to relevaut considerations. In the instant case there was agency agreement and accounting and financial reporting obligations imposed on the agent but the agent was alleged to have failed to account freight and other charges collected from the shippers. When the matter was sub-judice before the Arbitral Tribunal, the principal sought interim order directing agent to deposit the amount that he had received from the shippers as security. However, documents relied by the principal to set up his claim were disputed by the agent before the Arbitral ‘Tribunal and he had also filed a counter claim. It was held that in such a case it would not be appropriate to record specific finding even prima facie with regard to amount allegedly received by the agent from shippers. Hence, interim order in favour of the prineipal was not granted. (x) “Interim relief'—Order passed by the Court should fall within the meaning of expression "an interim measure of protection" as distinguished from all time or permanent protection The Supreme Court in Firm Ashok Traders & another etc. v. Gurumukh Das Saluja & others etc.,’ observed that Section 9 permits application being filed in the Court before the commencement of the arbitral proceedings but the provision does not give any indication of time limit for the purpose to invoke Section 9 of the Act, 1996. However, word ‘before’ as used in Section 9 of the Act connotes before the reference is made for arbitration but certainly not later on. The party invoking Section 9 may not have actually commenced the arbitral proceedings but must be able to satisfy the Court that the arbitral proceedings are actually contemplated or manifestly intended and are positively going to commence within a reasonable time. What is a reasonable time will depend on the facts and circumstances of each case and the nature of interim relief sought for would itself give a 1, AIR 2004 Bom. 136. 2, AIR 2004 SC 1433.“ARBITRATION ng indication thereof. The distance of time must not be such as would destroy the proximity of relationship of the two events between which it exists and elapses, The Supreme Court expressed the view that the purpose of enacting Section 9 of the Act, read in the light of the Model Law and UNCITRAL Rules is to provide "interim measures of protection". Hence, the order passed by the Court should fall within the meaning of the expression “an interim measure of protection" as distinguished from an all time or permanent protection. If arbitral proceedings are not commenced within a reasonable time of an order under Section 9 of the Act, 1996, the relationship between the order under Section 9 and the arbitral proceedings would stand snapped and the relief allowed to the party shall cease to be an order made "before" i.e, in contemplation of arbitral proceedings." (xi) No injunction granted—When the plaintiff has already invoked the remedy available 2 . In Goyal MG. Gases Lid. v. Griesheim G.M.B.H.,” the plaintiff had sought for enforcement and implementation of the arbitration agreement to resolve the differences through the process of arbitration. In fact the plaintiff No. 1 had already filed an application under Section 9 seeking for restraining the defendant from proceeding with acquisition of the shares of the BOCL and also seeking to enforce clause 9 of the contract. It was held that. in respect of any dispute arising out of the agreement, the High Court would be reluctant to exercise powers and jurisdiction and also would not grant an injunction in respect of the same in the instant suit particularly when the plaintiff had already invoked the remedy available to it under the Arbitration and Conciliation Act, 1996. A plain reading of Section 9 of the new Act, 1996 clearly shows that it is an enabling section which facilitates a party to apply to a court for an adequate interim measure for safeguarding his interest in the matters laid down in the section as it is available in any civil proceeding. It is to be noted that these measures can be available under Section 9 of the new Act, only when the application is accompanied by a request for arbitration. It was held that the relief under Section 9 may be granted before and in anticipation of any reference to arbitration and it is irrelevant whether the appointment of arbitrator has been made or not.’ Provision of Section 9 of the new Act, 1996 does not apply to the International Commercial Arbitration. lt is important to note that under Section 17 of the Arbitration and Conciliation Act, 1996 the arbitral tribunal has been empowered to issue any interim measures at the request of the party during the arbitration proceedings, but the arbitral tribunal cannot order any interim measures before the commencement of the arbitration proceedings or after the arbitral award is made. 1, Firm Ashok Traders & another etc. v. Gurumukh Das Saluja, ATR 2004 SC 1433, 2. 1999 (2) RAJ. 5 (Del.). 3. Gokuldas v. Union of India, AIR 1989 Ker. 169 (case decided under Section 41 of the 2nd Schedule of the Arbitration Act, 1940, now section 9 of the new Act, 1996),120 ALTERNATIVE DISPUTE REDRESSAL SYSTEM (xii) Hire purchase agreement—Owner was well within its right to resort to arbitration in terms of arbitration clause in agreément, In M/s, TVS Investments Ltd. v. M/s. Essorpee Mills Lid.,' where clause 26 of the hire purchase agreement, read as follows :-— "26. All disputes, differences and/or claims, arising out of this hire purchase agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of Indian Arbitration Act, 1940 or any statutory amendments thereof and shall be referred to the sole arbitration of an arbitrator nominated by the authorised representative of the owner, The award given by such an arbitration shall be final and binding on all the parties to this agreement." Tt was held that a reading of the above clause makes it clear tnat in case of any dispute that arises, the parties are entitled to resort to arbitration proceedings, Hence, the appellant is well within its right to approach the learned single judge under the provisions of Arbitration and Conciliation Act, 1996. A perusal of the hire purchase agreement clearly discloses that in the hire purchase agreement, the respondent herein is described as hirer and the appellant as "owner" as per description found in other clauses of agreement, (xiii) Power to grant interim relief—Court is not bound by limits of Order 39, Rules 1 and 2 of C.P.C. The Rajasthan High Court in Samit Kevadia & others ete. v. M/s. Aerens Gold Souk International Ltd.,’ ruled that the Curt while granting interim relief under Section 9 of the Act is not bound by the limits of Order 39, Rules 1 and 2 of C.P.C. Under Section 151 of the C.P.C., the Court has got inherent power to protect the rights of the parties pending the suit. In fact, the legislature in its wisdom has used the words, "the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any Proceedings before it" in Section 9 of the Act. Therefore, the inherent power contained under Section 151 of the C.P.C. would have to be ipso-facto read into Section 9 of the Act. Hence, the plea that the Court is duty bound to consider only three ingredients of Order 39, Rules 1 and 2 of C.P.C. is not tenable, Of course, the Court would not be justified in jumping over the limits placed by Order 39, Rules 1 and 2 of C.P.C. in every case. Since the discretion granted under Section 9 of the Act is a vast one, it has to be exercised sparingly. The Court must consider the existence of an arbitration agreement, and the need to preserve the property. It should prevent the threat to the property. If the nature of the property is likely to be charged, if the property is likely to be transferred, if the subject matter of the dispute is likely to disappear during the pendency of the proceedings, it should exercise the power under Section 9 of the Act. Thus, where the party had entered into a sale deed with transferee firm even before the Government had refused its permission for the second 1, AIR 2004 Mad, 175 (DB). . ATR. 92007 (NOC) 1097 (Rai.).ARBITRATION : 121 of land and in case firm was allowed to raise construction or to charge the nature of the land in dispute or to transfer, the said land to a third party, the subject matter of the dispute would disappear and it would lead f litigation between the parties. The Court was, certainly, ing © toed in ranting a temporary injunction in favour of the respondent. (xiv) Sale of iron ore—Totally restraining appellant is not proper In B.C. Dagara v. MKD. Mineral and Export (P.) Ltd.,! where contract for purchase of jron ore between the appellant and the respondent; whereas respondent alleged to have committed breach of contract and the appellant calling upon the respondent to clear dues. Interim order passed by the Court below restraining the appellant from terminating the contract and selling iron ore from mines to third party. It was held that if the respondent is not protected, jt shall bring irreparable loss to it. At the same time, allowing interim order to continue will bring loss to the appellant who was admittedly owner of mines. As appellant had agreed not to sell any iron ore to any other party, impugned interim order is not proper. (xv) Restitution of conjugal rights—Burden on non-applicant to show the cause for withdrawal from society of applicant In Mahesh Kumar v. Smt. Anju,’ where in a petition for restitution of conjugal rights by husband, the wife and her father made categorical statement that wife has not willing to live with husband on any condition, withdrawal of petition by husband for filing of divorce petition under Section 13 of the Hindu Marriage Act, 1955 on ground of desertion would be proper. If any order or decree would have been passed in favour of husband, it would not have served any purpose for either party. The reason is that in the cases under Section 9 of the said Act the burden is upon the non-applicant to show cause for withdrawal from society of applicant and if no sufficient reason is shown by non-applicant for living separate from applicant, the Court can pass the decree for restitution of conjugal rights. Even after such decree, if non-applicant will not discharge his/her obligation and there is no restitution of conjugal rights between the parties for a period of one year, as per Section 13(1-A)(ii) of the Act, the applicant of petition under Section 9 of the Act, can seek divorce decree. Meaning thereby, in the instant case the husband if would have continued with proceedings under Section 9 and would have obtained decree under said proceedings, he could have filed the petition for divorce an year after decree in proceedings under Section 9 of the Act. In facts of this case, it is clear that cause of action accrued to husband for obtaining divorce decree on the ground of desertion under Section 13(1)(1-R) of the Act during pendency of petition under Section 9 of the Act and in view of wife and her father’s statements, the husband as a prudent man decided not to wait further for obtaining decree under Section 9 of the Act and decided to file present divorce petition under Section 13(1Xi-b) of the Act. In view of the above reason, the pendency of petition under Section 9 of the Act might have created unnecessary multiplicity of proceedings, contradiction ii eS 1, AIR 2007 (NOC) 525 (Ori.). 2. AIR 2007 (NOC) 309 (Raj.).122 ALTERNATIVE DISPUTE REDRESSAL SYSTEM and hurdle in deciding the matrimonial dispute between the parties. (xvi) No Specific Provision for Payment of Court-fees under the Act of 1996 In M/s, Modern Metal Industries and another v. Smt. Shanti Parolia & others,’ where the partnership firm was having Bank Account with cash credit limit upto 15 lacs, The operation of the said account was stopped by the Bank on the complaint submitted by two partners of the firm. The firm and the remaining partner who was authorised to operate the account challenged the stoppage under Section 9 of the Arbitration and Conciliation Act, 1996 unsuccessfully. It is to be noted that Section 9 of the Act provides interim measures etc. The question is as to what is the valuation of appeal for the purpose of jurisdiction rather valuation of subject matter of arbitration for the purpose of jurisdiction. It was held that the Court having jurisdiction to decide the question forming subject matter of a suit will have jurisdiction to entertain and decide an application under Section 9 of the Act excluding any civil court of a grade inferior to such principal civil court or any court of small causes. Schedule II to the Court Fees Act, 1870 Item No. 18 prescribes Court-fees under the Arbitration Act, 1940 for an application under Section 14 or 20 of the Arbitration Act, 1940 and other application under the Arbitration Act, 1940. Similarly, 11-A of the Schedule provides Court-fees payable on memorandum of appeal under Section 39 of the Arbitration Act, 1940. There is no specific,provision for payment of Court-fees under the Act of 1996. It was further held that the proper valuation for the purposes of jurisdiction in appeal challenging the order under Section 9 i.e., grant of injunction order to stop operation of Bank Account with cash credit limit, should be Rs. 15 lacs. The subject matter of the arbitration was the amount likely to be affected by the exercise of the right of the remaining partners to operate the Bank account. Hence, the turnover of the firm could not be the subject matter for the purposes of jurisdiction. (xvii) Existence of arbitration clause—photocopies agreements can be taken on record The question is relating to admissibility of photocopies of original agreement in view of Section 65 of the Evidence Act, 1872. The Supreme Court in Bharat Sewa Sansthan v. U.P. Electronics Corporation Ltd.,* ruled that it was the specific case of the respondent corporation (lessee) before the High Court that the original agreements are in the possession of the appellant Sansthan (Lessor), whereas the stand of the appellant Sansthan was that the original agreements are not in its possession, When both lessor and lessee denied possession of original lease agreement, the High Court rightly held that the photocopies of the original agreement could be taken on record for ascertaining the existence of arbitration clause in terms of Section 65 of the Evidence Act, 1872. of original 1, AIR 2004 All. 227. 2. AIR 2007 SC 2961.ARBITRATION 123 (xviii) Indian Premier League—temporary injunction—termination of Media Rights by BCCI Where world wide tenders were invited by Board of Cricket Control of India (BCCI) for Indian Premier League (IPL) Media Rights for a period of ten years from 2008 to 2017 and bid of World Sports Group (WSG) was accepted. By a pre-bid management, however respondent was to get media rights for the sub-continent for that period accordingly on 21.1.2008, a Medical Rights License Agreement for 2008 to 2012 was entered into between BCCI and respondent for US $ 274.50 million. After first IPL season, BCCI terminated the said agreement on 14.3.2009 and commenced negotiation with WSG. This led filing of petition under Section 9 of ‘Arbitration Act, praying for injunction against BCCI from acting on the said termination letter and for preventing BCCI from granting the rights under the said agreement to any third party. After negotiation between BCCI and WSG, BCCI granted Media Rights for Indian sub-continent for 2009 and 2017 for Rs. 4.791.08 crores, for operating the rights in India, appellant was required to seck sub-licensee within 72 hours, but even after extension of this time, twice, appellant couldn’t get a sub-licensee. Thereafter, appellant claimed to have allowed Media Rights in India to have lapsed and then facilitated on 25.3.2009, a new Media Rights License Agreement between BCCI and the respondent for the Indian sub-continent for the same contract value of Rs. 4,791.08 crores. While BCCI and WSG was to continue with rest of the World Media Rights on the very same day, ie. on 25.3.2009, appellant and respondent also executed the deed for provision of facilitation service, stipulating payment of Rs.- 425 crores by respondent to appellant as facilitation fees—Clause 9 of the said deed was titled ‘Governing law—After making three payments totaling Rs. 125 crores under facilitation deed respondent did not make instead, intended to rescind the deed, alleging the same to be voidable on account of misrepresentation—so, respondent filed a suit, seeking declaration that the deed was void and for recovery of Rs. 125 crores already paid to appellant, appellant invoked Clause 9 of the deed, requested ICC for arbitration—ICC in term issued a notice to respondent to file its answer to the request for arbitration. Respondent, meanwhile filed a second suit, seeking declaration that, since the deed stood rescinded, appellant was entitled to invoke Arbitration Clause—An application was also filed, seeking temporary injunction, training appellant from continuing with arbitration proceedings. As against order of single judge, dismissing the application for temporary injunction, by impugned order. Division Bench of High Court allowed the appeal and granted temporary injunction as was prayed, held that single judge of High Court was right in holding that it is for the arbitrator to decide this dispute in accordance with arbitration agreement, go, for stated reasons, impugned order set aside, appeal allowed." Number of arbitrators (S. 10). (1) The parties are free to determine the number of arbitrators, led that such number shall not be an even number. 1, World Sport Group (Mauritius) Ltd. v. MSM Satellite (Singapore) Pot. Lid., 2014 AIR (SC) 968,