ORDER S. RAJESWARAN, J. 1. O.A. No. 641 of 2007 has been filed to pass an order of interim injunction restraining the respondents, their men, servants or agents or anyone claiming through or under them from selling, alienating, encumbering or otherwise disposing off the 31 nos. of Wind Electric Generator ‘ s and the lands appurtenant thereto morefully and particularly described in the Schedule hereunder in any manner whatsoever pending completion of the arbitration proceedings. 2. O.A. No. 642 of 2007 has been filed to pass an order of interim injunction restraining the respondents, their men, servants or agents or anyone claiming through or under them from operating or running the schedule mentioned WEGs pending completion of the arbitration proceedings, 3. O.A. No. 3808 of 2007 has been filed to direct the respondents to return the spares listed in Annexure to the applicant. 4. O.A. No. 3809 of 2007 has been filed to direct the respondents to render the full accounts of the generation proceeds realised from the schedule mentioned WEGs from 15.5.2006 till date and deposit the same in an escrow to be opened in the joint name of the applicant and the second respondent pending completion of the arbitration proceedings. 5. O.A. No. 975 of 2007 has been filed to issue an order of interim injunction restraining the second respondent from proceeding further with the issue of the initial public offer of the second respondent as proposed under the Red Herring Prospectus issued by the second respondent pending final disposal of the arbitration proceedings. 6. As the parties and the issues involved in all the above applications are one and the same, a common order is being passed to dispose of all the applications. 7. O.A. Nos. 641 & 642 of 2007 and Appln. Nos.3808 and 3809 of 2007 were filed in May 2007 and O.A. No. 975 of 2007 was filed by the very same applicant on 16.8.2007. 8. The facts as culled out from the affidavit in support of the first four applications are as under: The applicant company is engaged in the business of setting up an operation and management of Wind Farms and Generation of power from Wind Electric Generators (hereinafter called W.E.G.). The first respondent company is the promoter of the second respondent company. 8. The facts as culled out from the affidavit in support of the first four applications are as under: The applicant company is engaged in the business of setting up an operation and management of Wind Farms and Generation of power from Wind Electric Generators (hereinafter called W.E.G.). The first respondent company is the promoter of the second respondent company. On 24.2.2006, an agreement for sale was entered into between the applicant and the first respondent for selling the applicant ‘ s business assets to the second respondent for a total consideration of Rs. 98,19,00,000/- (Rupees ninety eight crores and nineteen lakhs only). 9. As per the agreement dt. 24.2.2006 the second respondent agreed to issue 74,00,000 equity shares of Rs. 10/- each at a premium of Rs. 90/- per share and both the respondents undertook that the second respondent shall not issue equity shares of Rs. 10/- each to any entity at a premium of less than Rs. 90/- per share. Though the second respondent was not a signatory to the agreement, the second respondent was a party, to the said agreement and all the other commitments, undertakings, promises made by the first respondent for and on behalf of the second respondent. The second respondent acted upon the agreement and passed a resolution dt. 15.4.2006 for the transfer of shares in favour of the applicant. Clause 10 of the agreement deals with Arbitration proceedings to resolve disputes and differences. 10. According to the applicant, it sold and transferred to the second respondent, 31 nos of W.E.G. for the total value of Rs. 13,48,00,700/-. The lands on which these W.E.Gs. were installed were also transferred to the second respondent. As per the agreement, the employees of the applicant joined the services of the second respondent under specific appointment letters issued by the second respondent. 11. While so, the applicant was shocked to know that the second respondent issued 7,50,000 equity shares at par to the first respondent in a flagrant breach of its undertaking. Further, the second respondent has now issued Red Herring Prospectus towards the proposed I.P.O. Apart from that the second respondent issued bonus shares to its shareholders and allotted 1,01,47,108 shares to the first respondent as bonus shares at face value of Rs. 10/- without fixing any premium above Rs. 90/ per share in flagrant violation of Clause 4.2(i) of the agreement dt. 24.2.2006. 10/- without fixing any premium above Rs. 90/ per share in flagrant violation of Clause 4.2(i) of the agreement dt. 24.2.2006. At page 18 of the prospectus the second respondent stated that they are not certain of completing the remaining acquisition and only a part has been acquired by them. 12. The applicant sent a legal notice dt. 21.3.2007 to the respondents, but there was no reply from them. In the meantime, the second respondent enjoying the proceeds of generation of power from the W.E.Gs acquired from the applicant and depriving the applicant of their rightful dues. The respondents are also now trying to dispose of the W.E.Gs and the appurtinent lands and thereby attempting to create third party interest. Hence, the applicant filed the first four applications for aforesaid reliefs. 13. This Court by order dt. 9.5.2007 passed an order of interim injunction in O.A.No. 641 and 642 of 2007 and directed the respondents to render full accounts of the generation proceedings realised from W.E.Gs. from 15.3.2006 in Appln. No. 3809 of 2007 and ordered notice in respect of Appln. No. 3808 of 2007. Both the respondents have entered appearance in all the four applications and filed their counter affidavits. 14. In their common counter affidavit, the first respondent stated that under the sale agreement dt. 24.2.2006 the first respondent only acted as a facilitator and the agreement consists of many conditional precedents and depends purely upon several contingent events. To their knowledge, the applicant has not given any Board approval to the sale agreement. The first respondent accused the applicant for not fulfilling its obligations under the agreement and rushing to the Court prematurely. Further, the applicant has already rescinded the sale agreement dt. 24.2.2006. The applicant never expressed their readiness and willingness to perform their part of the contract and as such they cannot compel the first respondent to perform their part of the obligations. 15. In their common counter affidavit, the second respondent stated that there is no agreement between the second respondent and the applicant and therefore the agreement dt. 24.2.2006 will not bind them. Therefore, Section 9 of Arbitration itself is not maintainable against them. 16. In so far as the W.E.Gs. are concerned, the second respondent negotiated the said sale on its own without reference to the sale agreement dt. 24.2.2006. The applicant on 15.3.2006 raised an invoice for 39 nos. of W.E.Gs. 24.2.2006 will not bind them. Therefore, Section 9 of Arbitration itself is not maintainable against them. 16. In so far as the W.E.Gs. are concerned, the second respondent negotiated the said sale on its own without reference to the sale agreement dt. 24.2.2006. The applicant on 15.3.2006 raised an invoice for 39 nos. of W.E.Gs. for a total value of Rs. 14,06,61,600/- and the entire sale consideration was paid by the second respondent. But the applicant delivered only 28 W.E.Gs. and unilaterally reversed the sale of other W.E.Gs. It is further stated by the second respondent that even assuming the second respondent is bound by the terms of the sale agreement dt. 24.2.2006, it is void as the same was not ratified by the second respondent. The second respondent ‘ s shareholders or the Board of directors have not taken note of the sale agreement and in such circumstances the second respondent cannot act upon such agreement. The second respondent referred to the fact that till now they have not allotted any shares to any entity much less to the first respondent. So far as the issue of bonus shares are concerned, the second respondent, was authorised by the shareholders and the same cannot be questioned by the applicant. 17. The applicant filed two rejoinder affidavits to the common counter affidavits filed by the first and second respondents reiterating their earlier stand. 18. When the above four applications were pending disposal before this Court, now the applicant has filed O.A. No. 975 of 2007 for an order of interim injunction restraining the second respondent from, proceeding further with the initial public offer as proposed under the Red Herring Prospectus issued by the second respondent. 19. In the affidavit filed in support of O.A. No. 975 of 2007, the applicant while reiterating the same averments contained in the four applications, added that they are going to seek an order before the Arbitrator to annul the allotment of all the shares made by the second respondent in violation of Clause 4.2(i) of the sale agreement dt. 24.2.2006. It is their case that in the event of damages being awarded to the applicant the applicant may have to sell the shares allotted to it to recover the damages. In such an event, the applicant will not be able to realise the full value of the shares as the same would stand diluted further. 24.2.2006. It is their case that in the event of damages being awarded to the applicant the applicant may have to sell the shares allotted to it to recover the damages. In such an event, the applicant will not be able to realise the full value of the shares as the same would stand diluted further. Therefore, they wanted to stop the proposed public issue of the second respondent. The applicant has already filed a complaint before SEBI and as SEBI has failed to act on the basis of the complaint, the applicant has been advised to file a writ petition against SEBI. In the meantime, the applicant has filed the above O.A. No. 975 of 2007 for an order of injunction to stop the proposed public issue by the second respondent. 20. When O.A. No. 975 of 2007 came up for admission, the second respondent who entered caveat appeared before this Court through their counsel. The learned counsel for the first respondent also appeared and took notice on behalf of .the first respondent. As the proposed issue is slated for public issue on 21.8.2007, all the parties requested for an early disposal and accordingly by the consent of all the parties all the five applications were taken for final disposal. 21. Heard the learned counsel for the applicant, the learned counsel for the first respondent in all the applications, learned counsel for the second respondent in O.A. No. 641, 642, 3808 and 3809 of 2007 and the learned counsel for the second respondent in O.A. No. 975 of 2007. I have also gone through the documents and judgments referred to by them in support of their submissions. 22. The facts are not in dispute. It is an admitted position that an agreement of sale was entered into between the applicant and the first respondent on 24.2.2006. According to the sale agreement, the first respondent is desirous of purchasing certain assets of the applicant and has made an offer to purchase of those assets for its nominee company; Indo Hind Energy limited, the second respondent herein. The total consideration is a sum of Rs. 98.19 Crores and this proposed sale is subject to third party certifications, valuation and completion of statutory and legal formalities. Clause 4.2 of the agreement deals with how the consideration is to be made by the second-respondent for the assets totalling Rs. 98.19 Crores. The total consideration is a sum of Rs. 98.19 Crores and this proposed sale is subject to third party certifications, valuation and completion of statutory and legal formalities. Clause 4.2 of the agreement deals with how the consideration is to be made by the second-respondent for the assets totalling Rs. 98.19 Crores. Clause 4.2 reads as under: “ 4.2 IW has agreed to make consideration for the assets totaling Rs. 98.19 crores as follows: i. By issue of 74 lac shares at a face value of Rs. 10/- and premium of Rs. 90/- per share, aggregating Rs. 74 crcres. It is also agreed upon that Indowind shall not issue equity shares of Rs. 10 each to any entity at a premium of less than Rs. 90/- per share. ii. By cash payment of Rs. 9.00 crores to be paid in the following manner: 1 Initial Advance payable 0.25 crores 2 Further Payment by discounting of Power sale 4.25 crores 3 Payment on sale of WEGs 4.50 crores 23 Clause 4.3 stipulates that each class of asset shall be dealt with independently which reads as under: “ 4.3 It is agreed between the parties that each class of asset shall be dealt with independently. The transactions requiring no consent from charge holders and payment by issue of shares shall be completed on completion of statutory formalities by both sides. The transactions requiring consents from the IPO proceeds from the balance amount payable of Rs. 15.19 crores, which is earmarked for meeting employee provision of Rs. 50 lacs, matured/unpaid liabilities and settlement of liabilities to the banks/Financial institutions/others, after obtaining suitable settlement with the charge holders. In case the IPO route is not acceptable to any Creditor/lender/charge holders, alternate options shall be discussed and a solution will be arrived at which is acceptable to all the parties concerned. In respect of transactions not requiring consents from charge holders and payment is by way of cash in part/full, such amounts shall be paid by Indowind from IPO proceeds. The payments will fall due on the date of completion of formalities by Wescare which shall not exceed 1 year from the date of this agreement to the parties disclosed in Annexure-A. However, the Buyer has the right to negotiate and settle directly. ” 24. The payments will fall due on the date of completion of formalities by Wescare which shall not exceed 1 year from the date of this agreement to the parties disclosed in Annexure-A. However, the Buyer has the right to negotiate and settle directly. ” 24. Clause 6.3 stipulates that the applicant shall obtain all necessary regulatory, corporate and other approvals/ consent for giving effect to the asset purchase. 25. As per Clause 7(c) of the agreement, the first respondent shall take over the operation of the assets with effect from 1.4.2006. 26. Clause 10 deals with arbitration proceedings to resolve the disputes and differences. 27. Clause 11 is very specific that the agreement is subject to approval of the respective Boards/shareholders and if such approval is not obtained on or before 30.6.2006, the agreement shall be null and void and all the transaction already done under the agreement would be reversed with damages to the defaulting parties. For better appreciation Clause 11 is extracted below: “ Notwithstanding anything to the contrary herein contained this AGREEMENT, this agreement is expressly subject to the approval of the respective Boards of Directors/Shareholders by the Seller, the Buyer, and Indowind Energy Limited and if such approval is not obtained either by the seller, the Buyer or IW on or before 30.6.2006 this AGREEMENT shall be null and void and of no effect whatsoever and all transactions done under this agreement shall be reversed with all the costs and damages to the defaulting party. ” 28. On the basis of the above said agreement, dt. 24.2.2006, the applicant has filed the above applications under Section 9 of the Act 1996 for interim protection. 29. First, let me consider O.A. No. 641 of 2007 which is for interim injunction restraining the respondents from selling or alienating the 31 of the W.E.Gs. and the land appurtenant, thereto pending completion of arbitration proceeding. 30. First of all to maintain an application under Section 9 of the Act, the applicant has to establish that there is an arbitration agreement between the parties and unless an interim order is granted, the applicant would suffer irreparable damages. and the land appurtenant, thereto pending completion of arbitration proceeding. 30. First of all to maintain an application under Section 9 of the Act, the applicant has to establish that there is an arbitration agreement between the parties and unless an interim order is granted, the applicant would suffer irreparable damages. Even though the provisions of Order 39 Rule 1 and 2 of C.P.C. would not directly apply to an application filed under Section 9 of the Act 1996, the underlining principles of Order 39 Rule 1 and 2 could be imported to an application filed under Section 9 also. 31. It is the case of the applicant that the sale agreement dated 24.02.2006 was entered into with the first and second respondents containing an arbitration, clause. But a perusal of the sale agreement would only show that it was entered into between the first respondent as buyer and the applicant as seller. Even though it was stated in the agreement that the agreement is for purchasing the assets of the applicant for the first respondent ‘ s nominee company, that is the second respondent, the second respondent is not a signatory to the agreement of sale. In such circumstances, a genuine doubt arises as to the binding nature of the agreement on the second respondent who is hot a signatory to the agreement. 32. Section 2(1) (h) of the Act 1996 defines party. According to this Section party means a party to an arbitration agreement. Arbitration agreement was defined under Section 2(1) (b) of Arbitration Act. According to which, arbitration agreement means an agreement referred to Section 7 . Section 1 of the Arbitration Act is extracted below: “ 7. Arbitration agreement (1) In this part “ arbitration agreement ” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. ” 33. Under Section 9 , a party may apply to a Court for interim measures. Under Section 34(2) an arbitral award may be set aside if the party making the application furnishes proof as contemplated thereon. A combined and conjoint reading of Section 2(1) (h), Section 7Section 9 and Section 34 of the Act 1996 would make it clear that only a signatory to the agreement is defined as a party and it does not include a party who is non signatory to the agreement. 34. In Chennai Container Terminal Pvt. Ltd., Chennai and Another v. Union of India, rep. by Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi and Others) (2007) 4 MLJ 412 a Division Bench of this Court was to decide whether the expression “ party ” used in Section 34(2) means only a “ party ” to the arbitration proceedings or whether it includes third parties also. The Division Bench held that only a party to the arbitration agreement can invoke the provisions of Section 34 of the Act and a third party has no locus standi to challenge the award under Section 34 of the Act 1996. The relevant portion of the order reads as under: “ 9. The Division Bench held that only a party to the arbitration agreement can invoke the provisions of Section 34 of the Act and a third party has no locus standi to challenge the award under Section 34 of the Act 1996. The relevant portion of the order reads as under: “ 9. However, in the case on hand the learned single Judge has held that though Section 34 of the Act contemplates challenge of the award made by the party to the arbitration agreement, in view of Section 2(1) (h) of the Act, the import of the word ‘ party ‘ can be judiciously expanded, if the context so warrants. Hence, the word ‘ party ‘ may include not only the signatory to the arbitration agreement but also a party non-signatory to the agreement. According to the learned single Judge, the contextual facts and circumstances warrant expansion of the definition found under Section 2(1) (h) of the Arbitration & Conciliation Act, 1996 to include the Government of India, which is party non-signatory for the purpose of challenging the award under Section 34 of the Act. We fail to appreciate the stand taken by UOI that it is a non-signatory party to the agreement. Learned ASG was unable to show as to how UOI can be said to be a party to the agreement in the face of express provision contained in the agreement, which defined party to include only “ ChPT & CCTPL ” . The word ‘ Party ‘ is defined in Section 2(1) (h) of the Act to mean a “ party to an arbitration agreement ” and therefore, ordinarily the expression ‘ Party ‘ as used in Section 34 of the Act must carry the same meaning ‘ , namely, a party to the arbitration agreement or award. But, as the opening part of Section 2(1) (h) of the Act shows, the definitional meaning is subject to anything repugnant in the subject or context. We must, therefore, see whether there is anything in Section 34 or in the context in which it occurs which should compel us to place a broader meaning different from the one given to it in Section 2(1) (h). In our opinion, there is nothing in the subject or context of Section 34 which would suggest us to depart from the definitional meaning of the expression ‘ party ‘ . In our opinion, there is nothing in the subject or context of Section 34 which would suggest us to depart from the definitional meaning of the expression ‘ party ‘ . The expression ‘ party ‘ is used in Section 34(2) in its definitional sense to mean a party to the arbitration proceedings and does not include a third person, who is not a party to the agreement. To our mind the interpretation suggested by the learned ASG would make the Act totally unworkable. It is well settled that an award is final and binding only on the parties and can be enforced only against the party to the award. A third party would therefore be in a position to challenge the award, but not be bound by it, if the challenge fails. Equally, a third party can render the limitation period envisaged under the Act otiose by merely claiming knowledge of the award long after the period of limitation has expired. ” 35. Therefore, from the above discussion, it is clear that a party to an agreement means a party who is a signatory to the agreement and it does not include a non signatory also. In such circumstances, the maintainability of Section 9 , application itself against the second respondent is questionable and doubtful as the second respondent has not signed nor ratified the agreement. 36. Further, it is not in dispute that W.E.Gs were already purchased by the second respondent after paying the entire sale consideration. When this fact was admitted, it is not open to the applicant to ask for an injunction restraining the respondents from alienating the W.E.Gs. Further, Clause 11 contemplates costs and damages to the aggrieved persons in the event of default or violation of the agreement by the parties. Therefore, I do not find a prima facie case to grant an order of injunction in O.A. No. 641 of 2007 and the same is dismissed. 37. The prayer in O.A. No. 642 of 2007 is for an injunction restraining the respondents from operating or running the W.E.Gs pending completion of the arbitration proceedings. 38. This application is also liable to be dismissed for the very same reasons given by me for dismissing O.A. No. 641 of 2007 and accordingly O.A. No. 642 of 2007 is also dismissed. 39. The Appln. 38. This application is also liable to be dismissed for the very same reasons given by me for dismissing O.A. No. 641 of 2007 and accordingly O.A. No. 642 of 2007 is also dismissed. 39. The Appln. No. 3809 of 2007 has been filed to render full accounts of the generation proceeds realised from W.E.G. from 15.03.2006 till date and deposit the same in escrow account to be opened in the joint names of the applicant and the second respondent pending completion of arbitration proceedings. This prayer is also consequential one to the prayers asked for in O.A. No. 641 and 642 of 2007 and the very same reason given by me for dismissing O.A. No. 641 and 642 of 2007 this application is also liable to be dismissed. Hence, the application No. 3809 of 2007 is also dismissed. 40. The prayer in Appln. No. 3808 of 2007 is to direct the respondent to return the spares listed in Annexure to the applicant. 41. The applicant averred that the respondents have taken possession of certain spares pertaining to W.E.G. and it is alleged that the second respondent has taken away these spares surreptitiously without paying the consideration. Therefore, pending arbitration proceedings they want direction directing the respondents to return the spares. 42. But the second respondent in their common counter denied that spares have been delivered to them and therefore, according to them spares have not been delivered to them at all and prayer cannot be maintained against them. 43. I am of the considered view that the applicant failed to establish the prima facie case in this regard and such a prayer cannot be maintained at this stage. The applicant has to prove and establish before the arbitrator that the spares were delivered and take out appropriate applications before the arbitrator. Hence, the Appln. No.3808 of 2007 is also dismissed. 44. O.A. No. 975 of 2007 has been filed on 16.8.2007 praying for injunction restraining the second respondent from proceeding further with the issue of initial pubic offer of the second respondent as proposed under Red Herring Prospectus issued by the second respondent. 45. During the course of the argument; it was submitted by the learned counsel for the applicant that proposed public issue would take place from 21.08.2 007. 46. 45. During the course of the argument; it was submitted by the learned counsel for the applicant that proposed public issue would take place from 21.08.2 007. 46. After hearing the arguments and going through the relevant records, I am of the considered view that this application devoid of merits and the same is liable to be dismissed. 47. The case of the applicant is that as per Clause 4.2(i) of the sale agreement dated 24.2.2006, the second respondent undertook not to issue equity shares of Rs. 10/- each to any entity to a premium of less then Rs. 90/- per share. But the second respondent issued 7,50,000 equity shares on par to the first respondent and now issued a prospectus towards the proposed I.P.O. and it was found that the second respondent further issued 1,01,47,108 bonus shares to its shareholders on 15.4.2006. The complaint submitted by the applicant to Securities Exchange Board of India (hereinafter called as SEBI) in this regard has not brought any desired result. The applicant will seek a prayer before the arbitrator to annul the allotment of the shares made by the second respondent in violation of Clause 4.2(i) of the agreement dated 24.02.2006. In the event of arbitrator awarding damages to the applicant, it is contended by the applicant that the applicant will have to sell the shares allotted to it to recover the damages. Hence, the applicant wants to stop the proposed public issue of the second respondent, as it would affect the entire shareholding pattern of the second respondent. 48. First of all, the applicant has not explained why he has filed the above application at the eleventh hour when already four Section 9 applications were filed by them as early as in May 2007. Even in the above four applications, filed in May 2007, it was specifically and categorically stated by the applicant that the second respondent issued 7,50,000 equity shares to the first respondent at par and the second respondent has now issued Red Herring Prospectus towards the proposed I.P.O. 49. In such circumstances, if the applicant had any genuine grievance, they would have filed necessary application in this regard along with four earlier applications filed by them in May 2007. In such circumstances, if the applicant had any genuine grievance, they would have filed necessary application in this regard along with four earlier applications filed by them in May 2007. It is not for the applicant to file Section 9 application in piecemeal when the cause of action for the application already arose and the applicant knew that a Red Herring Prospectus was already issued towards the proposed I.P.O. This delay in approaching the Court itself is sufficient to reject the application. 50. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. AIR 1999 SC 3105 : 1999 (7) SCC 1 : (1999) Supp MLJ 8 the Hon ‘ ble Supreme Court held that for getting an order of injunction the party should approach the Court at the earliest possible time in so far as time frame is concerned. 51. Further, Section 9 applications are filed by the parties for interim measure before or during arbitral proceedings or at any time after the making of the award before it is enforced. Section 9 permits filing of an application before the commencement of the arbitral proceedings, but it does not give any indication of how much before. But the party invoking Section 9 must be able to satisfy the Court and the arbitral proceedings were actually contemplated or manifestly intended and were positively going to commence within a reasonable time. Ommission to take any step for initiation of arbitral proceedings is enough to deny the relief. 52. In Firm Ashok Traders and Another v. Gurumukh Das Saluja and Others AIR 2004 SC 1433 : (2004) 3 SCC 155 the hon ‘ ble Supreme Court held as follows: “ 17. There are two other factors which are weighing heavily with us and which we proceed to record. As per the law laid down by this Court in Sundaram Finance Ltd. an application under Section 9 seeking interim relief is maintainable even before commencement of arbitral proceedings. What does that, mean ? In Sundaram Finance Ltd. itself the Court has said: It is true that when an application under Section 9 is filed before the commencement of the arbitral proceedings, there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings. What does that, mean ? In Sundaram Finance Ltd. itself the Court has said: It is true that when an application under Section 9 is filed before the commencement of the arbitral proceedings, there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings. 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 how much before. The word “ before ” means, inter alia ahead of; in presence or sight of; under the consideration or cognizance of ” . The two events sought to be interconnected by use of the term “ before ” must have proximity of relationship by reference to occurrence; the later event proximately following the preceding event as a foreseeable or “ within-sight ” certainly. 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 (as Sundaram Finance Ltd. puts it) 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 an 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 purpose of enacting Section 9 , read in the light of the Model Law and UNCITRAL Rules is to provide “ interim measures of protection ” . 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. 18. Under the A & C Act, 1996, unlike the predecessor Act of 1940, the Arbitral Tribunal is empowered by Section 17 of the Act to make orders amounting to interim measures. The need for Section 9 , inspite of Section 17 having been enacted, is that Section 17 would operate only during the existence of the Arbitral Tribunal and its being functional. The need for Section 9 , inspite of Section 17 having been enacted, is that Section 17 would operate only during the existence of the Arbitral Tribunal and its being functional. During that period, the powers conferred on the Arbitral Tribunal under Section 17 and the power conferred on the Court under Section 9 may overlap to some extent but so far as the period pre- and post the arbitral proceedings is concerned, the party requiring an interim measure of protection shall have to approach only the Court. The party having succeeded in securing an interim measure of protection before arbitral proceedings cannot afford to sit and sleep over the relief, conveniently forgetting the “ proximately contemplated ” or “ manifestly intended ” arbitral proceedings itself. If arbitral proceedings are not commenced within a reasonable time of an order under Section 9 , 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. The Court, approached by a party with an application under Section 9 , is justified in asking the party and being told how and when the party approaching the Court proposes to commence the arbitral proceedings. Rather, the scheme in which Section 9 is placed obligates the Court to do so The Court may also while passing an order under Section 9 put the party on terms and may recall the order if the party commits breach of the terms. ” 53. In Apple Finance Ltd. v. Gayathri Sugar Complex Ltd. 2004(2) RAJ 54 (Mad) this Court following Firm Ashok Traders and Another v. Gurumukh Das Saluja and Others (supra) held that “ the applicant under Section 9 of the Act has duty to commence arbitral proceedings as expeditiously as possible once he seeks intervention of the Court and inordinate delay in commencing the arbitration proceedings has snapped the order already passed. 54. In the light of the above discussions and decisions, if the present application is considered, it is not in dispute that the applicant approached this Court in May 2007 and obtained an interim order under Section 9 in three of the above four applications filed by them. 54. In the light of the above discussions and decisions, if the present application is considered, it is not in dispute that the applicant approached this Court in May 2007 and obtained an interim order under Section 9 in three of the above four applications filed by them. But till today, no steps have been taken to commence arbitration proceedings and it was only submitted by the learned counsel for the applicant that the application filed by them under Section 11 of the Act for the appointment of arbitrator is in SR stage and the application is yet to be numbered. This only shows that there is no manifest intention on the part of the applicant to commence arbitration proceedings. Their promptness and eagerness in filing Section 9 applications and numbering them is not reflected in numbering the Section 9 application. Therefore, this delay in numbering the Section 9 application is to be held against the applicant. In fact this delay could be held against the applicant not only in this application, but also against the other four applications filed in May 2007. Further, it is an admitted position that the complaint dated 30.5.2007 was sent by the applicant to SEBI requesting the Board to enquire into the matter and stop the public issue of the second respondent. This complaint was made to SEBI after obtaining interim order in O.A. No. 641 and 642 of 2007 and appln. No. 3809 of 2007. But the same was also not followed up or persued by the applicant in accordance with law, even though a notice dated 2.7.2007 and another notice dated 4.7.2007 were issued by the applicant ‘ s counsel calling upon the Board to convey the status of the complaint dt.30.5.2007 and to stop the I.P.O. of the second respondent. 55. Apart from this, the applicant by their letter dated 9.5.2007 informed the respondents that they have filed four applications and obtained interim orders in three of the four applications filed by them. In the very same letter dated 9.5.2007 the applicant informed the respondents that they rescinded the agreement dated 24.2.2006 with immediate effect and terminated the same. In such circumstances, the applicant is only entitled to costs and damages against the respondent if they are able to prove that the applicant had to terminate the agreement due to the default caused by the respondents. In such circumstances, the applicant is only entitled to costs and damages against the respondent if they are able to prove that the applicant had to terminate the agreement due to the default caused by the respondents. Further, Clause 11 of the sale agreement dated 24.2.2006 abundantly makes it clear that the agreement itself is subject to approval of the respective boards of directors / shareholders of the applicant and the respondents 1 and 2. If such approval is not obtained either by applicant or by the respondents on or before 30.6.2006, the agreement shall be null and void. All the transaction done under the agreement shall be reversed with all costs and damages to the defaulting parties. 56. As already discussed while disposing of the Appln. No.641 of 2007, the maintainability of Section 9 application itself is questionable and doubtful in view of the fact that the second respondent .is not a signatory to the sale agreement dated 24.02.2006. 57. Therefore, I am not inclined to grant relief in O.A. No. 975 of 2007 and the same is dismissed. 58. Before parting with the case, I would like to clarify that whatever has been stated in this Order is not in any manner intended to be the findings on the merits of the case and it is open to the applicant to commence arbitration proceedings and prove the case before the Tribunal. Needless to add that what has been said in the order is only for the purpose of disposal of Section 9 applications, leaving all the questions open to be determined by the arbitrator uninfluenced by the observations made in this order. In the result, O.A. No. 641, 642 of 2007, Appln. No. 3808 and 3809 of 2007 and O.A. No. 975 of 2007 are dismissed. No costs. Ordered accordingly.