- Key points to remember:

- Show why interim relief by an arbitrator would not be as effective as a court order.
(section 9 instead of 17 why?)
- Show the case would succeed in arbitration.
- Show all remedies exhausted.
- There should be a sense of urgency – real, grave, imminent.
- Show grave negligence, laxity on part of the Respondents.
- Show irreparable loss, or special circumstances.
- Show the case would succeed in arbitration.
- Agreement default notice termination.
- Show no fault on your part.
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XX XX NO. 2025
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE

In the matter of:

The Arbitration and Conciliation Act,
1996.
–And –
In the matter of:
Section 9 of the said Act
–And –
…. (address of parties)
….
…..
To
The Hon’ble Chief Justice and His Companion Justices of the Hon’ble High Court at
Calcutta
The humble Petition of the Petitioner above named;

MOST RESPECTFULLY SHOWETH:

1. Your Petitioner is having his office at the address mentioned in the cause title of the
Petition. Your Petitioner inter alia, is engaged in the business of financing vehicles
and other movable assets, as well as in the business of providing credit facilities to its
constituents.

2. The Respondents are a partnership firm and have their common address as mentioned
in the cause title of the Petition.

3. On about 23rd August 2022, the Respondents expressed interest in obtaining a term
loan for the purpose of expanding its operations.
4. Pursuant thereto, an agreement (“Agreement”) dated 23rd August 2022 was entered
into between your Petitioner and the Respondents.

5. The salient features of the said agreement are as follows:

i…………….
ii……………
iii………...
iv………...

6. Clause 12 of the Agreement (“The Arbitration Clause”), directs that the dispute
resolution mechanism be Arbitration. It also states that the venue and seat of
Arbitration is to be Kolkata, West Bengal. The Arbitration Clause is valid, binding,
and enforceable under Section 2(1)(b) read with Sections 7 and 10, of the Arbitration
and Conciliation Act, 1996 (“the Act”).

7. By virtue of the Agreement, your Petitioner extended credit facilities (“the Loan/
Loan Agreement”) to the Respondents to the tune of Rs. 25,00,000/- (Rupees
Twenty-Five Lakhs only), repayable over a period of 36 months with interest at the
rate of 18% per annum.

8. The Loan amount of Rs. 25,00,000/- was disbursed from your Petitioner’s then office
at …………………………… which lies outside the jurisdiction of this Hon’ble
Court.

9. Payments were required to be made at your Petitioner’s branch office located at

………………………………… which is within the jurisdiction of this Hon’ble
Court.

10. Despite having availed off and enjoyed the benefits of the Loan, the Respondents
made only a few perfunctory payments, and even those were delayed. They began
defaulting from the 10th instalment. As a result of the Respondents’ recalcitrant and
negligent conduct, a substantial sum has now become due and payable under the
terms of the agreement.

11. Your Petitioner states that due to defaults committed by the Respondents in
complying with their contractual obligations under the Loan Agreement, your
Petitioner has lawfully terminated the said agreement. Your Petitioner has recalled the
loan and demanded a sum of Rs. 12,64,758/- (Rupees Twelve Lakhs Sixty-Four
Thousand Seven Hundred Fifty-Eight only). A formal notice to this effect was issued
from within the jurisdiction of this Hon’ble Court.

12. The liabilities of the Respondents under the Loan Agreement are unequivocal,
indefeasible, and undisputed. Despite this, the Respondents have failed and refused to
pay the aforesaid sum or any part thereof, either within or outside the jurisdiction of
 this Hon’ble Court.

13. Keeping the aforementioned facts in your kind consideration, your Petitioner has
come to learn from reliable source that the Respondents are endeavouring to sell
and/or dispose of its asset and property. These are the only available properties from
which your Petitioner 's claim can be satisfied.

14. This gives rise to a genuine, grave, and imminent apprehension that the Respondents
may take any steps necessary to defeat the Petitioner’s claim. If the properties are
dealt with as feared, it would create an irreversible situation, rendering any future
award in the Petitioner’s favour futile and incapable of enforcement, unless the same
is restrained.

15. In catena of judgments it has been repeatedly been held that interim reliefs are in aid
of final reliefs and while deciding an interim Application under Section 9 of the Act
i.e. for the purpose of considering interim measures, the Hon’ble Court has to
mandatorily consider whether the Petitioner has made out a prima facie case and
whether it would succeed finally in the arbitration proceedings and had thus made out
a case for grant of interim measures or not.

16. It is submitted that your Petitioner is willing and ready to refer the dispute under the
agreement to a learned Arbitrator in adherence to the Arbitration Clause contained in
The Agreement, and will in all likelihood succeed in the arbitration proceedings
prima facie.

17. However, approaching the Tribunal would be inefficacious if the Respondents become
aware of the invocation of the Arbitration Clause, as by the time the arbitral tribunal
shall make and publish the award, the Respondents would take obstructive measures
to relocate money from their bank accounts. Additionally, Respondents enjoy
considerable standing and influence in the city.

18. Thus, your Petitioner realises that the certain aspects and/or protection are beyond the
control of the arbitrator in the practical sense of the term and accordingly it is this
Hon'ble Court who can pass an order for the same which can be implemented
appropriately.

19. It is for such reason that your Petitioner has been constrained to approach this Hon’ble
Court under Section 9 of the Act of 1996, instead of section 17 of the Act.

20. The Petitioner states and submits that there exists no bar to seeking interim relief at
the pre-reference stage. On the contrary, under the first limb of Section 9(1) of the
Act, this Hon’ble Court is expressly empowered to grant interim measures even
before the commencement of arbitral proceedings.

21. In the question of which Court, between the City Civil Court and this Hon’ble Court
has territorial jurisdiction to decide the question forming the subject matter of
 arbitration as the same being the subject, it is humbly submitted that this Hon'ble
Court has jurisdiction matter of the suit as:

i. The Agreement was executed and concluded at the registered office of your
Petitioner in Kolkata (within the Jurisdiction of this Hon'ble Court).
ii. The Agreement was terminated from within Kolkata (within the Jurisdiction
of this Hon’ble Court).
iii. The Respondents have failed and neglected to pay the amount from outside
the said jurisdiction.
iv. The subject matter of reference is more than Rs. 10,00,000. (Minimum
amount required for the Jurisdiction of this Hon’ble Court).
v. Accordingly, by virtue of the seat of arbitration being Kolkata, this Hon’ble
Court has exclusive jurisdiction, irrespective of where the cause of action
arose.

22. Therefore, the Hon’ble High Court at Calcutta has the territorial jurisdiction to
entertain, try and/or determine this petition.

23. Considering this, certain facts may now be of service to this Court.

i. It has come to the knowledge of your Petitioner that there is bank account
held by the Respondents which is more fully described in Annexure C.
ii. The bank account contains substantial amounts, enough to clear the
Respondents default amount.

24. Therefore, your Petitioner submits that firstly, the Respondents may be restrained
from withdrawing any sum of money at all from its bank account, without leaving
aside an amount of 12,64,758/-. by an appropriate order of this Hon’ble Court and
secondly, the Respondents’ bankers be directed to refrain from releasing any funds to
the Respondents and instead be directed to deposit the equivalent debt amounts with a
Receiver to be appointed by this Hon’ble Court.

25. Your Petitioner is moving the present application ex parte as in case the Respondents
become aware of the present application the Respondents would take obstructive
measures to relocate money from their bank accounts.

26. It is submitted that the Petitioner has made out a prima facie case for the grant of the
reliefs prayed for herein and in all likelihood will succeed in the arbitration
proceedings.

27. The Petitioner submits that it has approached this Hon’ble Court with utmost good
faith and has not, by any act or omission, disentitled itself from seeking equitable
relief. The conduct of the Petitioner has at all times been fair, transparent, and beyond
reproach.

28. The Petitioner does not have any other equally efficacious alternate remedy except to
seek interim orders of protection from this Hon’ble Court, under Section 9 of the Act.
 29. Equity lies in favour of your Petitioner.

30. The balance of convenience lies in favour of passing of ex parte interim orders.

31. This application is bona fide and made for the ends of justice.

32. Unless orders are made as prayed for herein your Petitioner will suffer irreparable loss
and prejudice.

PRAYER:
In such circumstances, your Petitioner prays:

a) Issue a direction upon the Respondents to show cause as

to why they should not be ordered to furnish security to
the extent of ₹12,64,758/-;

b) If the Respondents fail to show cause, or show insufficient

cause, be pleased to direct the Respondents to furnish
security for the said amount of ₹12,64,758/- within such
time and upon such terms as this Hon’ble Court may
deem just, fit, and proper;

c) Pass an order of injunction restraining the Respondents,

including their men, servants, agents, assigns, and
representatives, from withdrawing any monies from the
bank accounts specified in Annexure C hereto, without
first setting aside and securing an amount of ₹12,64,758;

d) Ad-interim orders in terms of prayers above;

i. Costs related to this application be borne

by the respondents;

e. Such further order or orders be made and/or directions

be given as to this Hon’ble Court may seem fit and
proper.

And for this act of kindness, your Petitioner, as in duty bound, shall ever pray.

ADVOCATES FOR YOUR PETITIONER