KHAN ( 1 ) APPELLANT s application OMP 232 of 1997 filed under Section 9 of Arbitration and Conciliation Act, 1996 stands dismissed vide order dated 5/11/1999. Aggrieved of this, they have filed this appeal to assail the dismissal order. ( 2 ) APPELLANTS are an Australian Company while respondent No. 1 is a Czech Company and respondent No. 2 a Government of India Company. It appears that appellants and respondent No. 1 entered into a contract for execution of Kandla Bhatinda pipeline Project which was to supply refined petroleum products to northwestern regions in India. Pursuant thereto they are said to have undertaken execution of the project. While this execution was on respondent, No. 1 and 2, entered a separate agreement whereby respondent No. 1 agreed to handover the pipeline to respondent No. 2 in four separate phases, which was later handed over. ( 3 ) MEANWHILE disputes arose between appellants on the one hand and respondent No. 1 on the other. Appellants filed two separate notices requesting for arbitration against respondent No. 1 with the International Court of Arbitration of the ICC. These notices were challenged by respondent No. 1 in AA Nos. 74/96 and 75/96, before this court which were later dismissed as withdrawn. ( 4 ) IT further transpires that arbitral proceedings commenced sometime in 1996 and appellants moved this court in OMP 232/97 praying for restraint order against respondent No. 2, its agents and employees from taking any steps to release any payments to the respondent No. 1 in terms of contract between them dated 22/09/1993 to the extent of INR 68,33,03,992 (Rupees Sixty-eight crores fifty five lakhs three thousand nine hundred and ninety two) plus US$ 25,410,013 (US Dollars Twenty five million four hundred and ten thousand and thirteen) with interest etc. and alternatively for a direction to these respondents to deposit such amount with the Registry of this court. ( 5 ) APPELLANTS obtained an interim ex-parte order on 19/12/1997. The application was contested by respondent No. 1 on the plea of jurisdiction as also on merit. Learned Single Judge over-ruled the jurisdiction objection but at the same time declined to grant any injunction as prayed for against respondent No. 2. ( 5 ) APPELLANTS obtained an interim ex-parte order on 19/12/1997. The application was contested by respondent No. 1 on the plea of jurisdiction as also on merit. Learned Single Judge over-ruled the jurisdiction objection but at the same time declined to grant any injunction as prayed for against respondent No. 2. While doing so the learned Judge found that appellant had failed to establish a prima facie case and to show that respondent No. 1 was likely to render the entire arbitration proceedings infructuous by frittering away the properties or funds either before or during the pendency of arbitration proceedings or even during the interregnum period from the date of award and its execution. Respondent No. 1 was a solvent company and had not defaulted in honouring its financial obligations and that there was no cogent material available to grant an injunction against respondent No. 2 ( 6 ) THE appellant s are agrieved of this and their case is that learned Judge had fallen in error in reaching these conclusions and findings when the material on record showed to the contrary. They have placed on record a report of Dun and Bradstreet which showed the networth of respondent No. 1 as nil and have also sought support from a judgement of the Australian High Court frowning upon the conduct of this respondent. According to them all this was overlooked by the learned Judge to decline the injunction. ( 7 ) BOTH respondents No. 1 and 2 have filed objections to this appeal. Respondent No. 1 has taken the stand that its financial position had vastly improved in the course of time and that it could not be charged of frittering away its resources or hiding its assets to warrant an order being passed under Section 9 of the Act. ( 8 ) IT is also pointed out that appellants action was malafide because they had moved this court during pendency of arbitral proceedings at Lousana, Switzerland and if they were convinced of the merit of the claim, they could have as well sought redressal from the Arbitral Tribunal. It is also claimed that respondent No. 1 had raised counter claim of over 90 million dollars against the appellants which also deserved to be protected. It is also claimed that respondent No. 1 had raised counter claim of over 90 million dollars against the appellants which also deserved to be protected. ( 9 ) RESPONDENT No. 2 has totally denied its liability towards Respondent No. 1 stating that no amount was payable by it to this respondent. In fact it had asserted its own counter claims against respondent No. 1 to the extent of US- $ 136, 438,336 (Rs. 15,892,876,412 ). ( 10 ) LEARNED counsel for appellants Mr. Nigam reiterated the stand taken by him before learned Single Judge. He was at pains to show that respondent No. 1 had as good as gone broke and that there was an urgent need to secure the interests of appellants lest the award to be passed by the arbitrator was rendered useless. He referred to some data to indicate the alleged grim financial position of respondent No. 1. ( 11 ) LEARNED Senior Counsel for respondent No. 1, Mr. Chidambaram argued that appellants OMP 232/97 was misconceived and otherwise not maintainable under Section 9 of the Act. He submitted that appellants could not ask for an injunction against respondent No. 2 which was not a party to the arbitral proceedings, more so, when the financial relationship between respondents No. 1 and 2 was not in issue before the court, and when otherwise these respondents were trading claims and counter claims. He also justified the impugned order and placed reliance on some documents showing that Respondent No. 1 was recouping the financial health and that there was no warrant for apprehension that it would defeat the award, if suffered by it. ( 12 ) EVEN as we have examined of the detailed reasoning given by learned Single Judge for declining the injunction prayed for and with which we are called upon to take a contrary view, we find that the focal point was being missed in the thick of controversy. As it is appellants are asking for restraining Respondent No. 2 from paying any money to Respondent No. 1. But once Respondent No. 2 denies its liability towards Respondent No. 1, We fail to appreciate how a restraint order could be passed against Respondent No. 2. As it is appellants are asking for restraining Respondent No. 2 from paying any money to Respondent No. 1. But once Respondent No. 2 denies its liability towards Respondent No. 1, We fail to appreciate how a restraint order could be passed against Respondent No. 2. If no money was payable by it, how could it be restrained from paying it to Respondent No. 1 and even if it was, it would turn out to be an exercise in futility. ( 13 ) WE are told that Respondents No. 1 and 2 are engaged in a separate battle to vindicate their claims and counter claims. Whose liability is what is still in the realm of unknown and it becomes presumptuous at this stage to say that Respondent No. 2 should be deemed owing money to Respondent No. 1 and restrained from parting with it. ( 14 ) AT the same time, it could as well be that Respondent No. 2 would be ultimately held liable and in that event it would not be out of place to explore and provide for a suitable interim arangement to secure and protect the subject matter of the Award. It would be unnecessary in such a situation to examine whether an injunction could be passed against a third party under Section 9 of the Act. The question would not arise because party to arbitral proceedings (Respondent No. 1) herein could be subjected to any appropriate order to be passed under Section 9 so as to secure the enforceability of the Award. ( 15 ) THIS apart at one stage learned Senior Counsel Mr. Chidambaram did not dispute the position that Respondent No. 1 could be ordered to deposit the amount received by it in a Bank pending enforcement of the Award. All that he wanted was that in that case amount be required to be deposited with the Czech Banker of Respondent No. 1 which would help adjust its interest liability. This was not, however, agreeable to Mr. Nigam who thought that Respondent No. 1 would take away the amount as this court would cease to have any jurisdiction over it. All that he wanted was that in that case amount be required to be deposited with the Czech Banker of Respondent No. 1 which would help adjust its interest liability. This was not, however, agreeable to Mr. Nigam who thought that Respondent No. 1 would take away the amount as this court would cease to have any jurisdiction over it. ( 16 ) TO strike a via media we dispose of this appeal by an innocuous order providing as under:- (I) As and when any amount would be received by respondent No. 1 from respondent No. 2 pursuant to their contract agreement dated 22-9-1993 it shall be deposited by this respondent in any Czech Bank, other than its banker so as to await the outcome of enforcement of the Award. (ii) Upon such deposit, respondent No. 1 shall stand restrained from dealing with this amount in any manner whatsoever, if the award goes against it, subject of course to appropriate orders which may be passed by the court enforcing the Award. ( 17 ) THIS obviates the necessity of examining the rival issues raised by the parties regarding solvency or otherwise of Respondent No. 1 or whether Respondent No. 2 was liable to be injuncted, being a non-party and so on.