JUDGMENT Common Order: (V. Eswaraiah, J.) 1. These three Civil Miscellaneous Appeals are filed by the same Appellant under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) R/w Order 43 Rule 1 of C.P.C., against the same Respondent, aggrieved by the orders dated 13-04-2010 in O.P. NO.s 169 of 2010, O.P. No. 155 of 2010 and O.P. No. 2417 of 2009 respectively, on the file of the learned II Additional Chief Judge, City Civil Court, Hyderabad. 2. The Appellant-Wockhardt Hospitals Limited (For short, ‘Wockhardt’) filed the aforesaid three O.P.s against the Respondent-M/s. Kamineni Health Services and Kamineni Hospitals (For short, ‘Kamineni’) under Section 9 of the Act. O.P. 169 of 2010 against which C.M.A. 490 of 2010 is preferred, was filed under Section 9 of the Act by the appellant against the respondent for the following reliefs : a) Direct the Respondent, its men, employees etc., from interfering in conducting, management and operation of the Wockhardt Kamineni Hospital by the Appellant ; b) Restrain the Respondent, its agents, employees, representative or any person claiming through Respondent from creating any rights or interest in favour of any third party in respect of the Schedule property by way of entering into any agreement/deeds etc., including by way of charges, mortgage, encumbrance etc.; c) Restrain the Respondent, its men, agents, employees etc., from using/utilizing/interfering with the movable properties, as detailed in Document No.12, lying in the Schedule Property belonging to and absolutely owned by the Appellant including but not limited to causing damage and/or moving/shifting the same from its original locations d) Appoint an Advocate Commissioner to take inventory and possession of the movable and other valuable properties belonging to and absolutely owned by the Appellant, as detailed in Document No.12, lying in the Schedule Property in the presence of the Appellant ; e) Appoint the Appellant Company as a Receiver to take control of the administration of the Wockhardt Center including handling of income and expenditure ; f) Pass such other necessary and appropriate orders under Section 9 of the Arbitration and Conciliation Act, 1996. 3. 3. O.P. 155 of 2010 and O.P. 2417 of 2009 against which C.M.A. 491 of 2010 and C.M.A. 492 of 2010 are preferred, were filed under Section 9 of the Act by the appellant against the respondent for the following reliefs : a) Direct the Respondent, its men, employees etc., from interfering in conducting, management and operation of the Wockhardt Kamineni Hospital by the Appellant ; b) Restrain the Respondent, its agents, employees, representative or any person claiming through Respondent from creating any rights or interest in favour of any third party in respect of the Schedule property by way of entering into any agreement/deeds etc., including by way of charges, mortgage, encumbrance etc.; c) Restrain the Respondent, its men, agents, employees etc., from using/utilizing/interfering with the movable properties, as detailed in Document No.13, lying in the Schedule Property belonging to and absolutely owned by the Appellant including but not limited to causing damage and/or moving/shifting the same from its original locations; d) Appoint an Advocate Commissioner to take inventory and possession of the movable and other valuable properties belonging to and absolutely owned by the Appellant, as detailed in Document No.13, lying in the Schedule Property in the presence of the Appellant ; e) Appoint the Appellant as a interim receiver to take control of the administration of the Wockhardt Center including handling of income and expenditure ; f) Pass such other necessary and appropriate orders under Section 9 of the Arbitration and Conciliation Act, 1996. 4. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the trial Court. 5. It is the case of the petitioner that C.M.A.s 491 and 492 of 2010, the subject matter of the O.P. Nos. 155 of 2010 and 2417 of 2009, which were filed for the aforesaid reliefs pertains to the hospital situated at King Koti, Boggulkunta, Hyderabad, whereas, C.M.A. 490 of 2010, subject matter of O.P.169 of 2010 relates to the hospital situated at L.B. Nagar, Hyderabad, Ranga Reddy District. 6. 155 of 2010 and 2417 of 2009, which were filed for the aforesaid reliefs pertains to the hospital situated at King Koti, Boggulkunta, Hyderabad, whereas, C.M.A. 490 of 2010, subject matter of O.P.169 of 2010 relates to the hospital situated at L.B. Nagar, Hyderabad, Ranga Reddy District. 6. Submissions of the Petitioner: It is the case of the petitioner that Wockhardt is a reputed hospital having full equipment to manage and operate heart care and after verification of the credentials of the petitioner, the respondent had entered into Ex.P-3 agreement dated 19-05-2005, and Ex.P-6 agreement dated 23-04-2005 with the respondent and enabled the petitioner to have exclusive right and management of the heart care center for an initial period of ten years with two renewals with initial lock in period of 5 years. The Management Agreement was provided for various reciprocal obligations on the parties and after adhering to the management agreement for about four years, the respondent without any notice and without any authority of law, contrary to the terms of the management agreement, created a situation in which all the doctors, consultants and medical staff of the petitioner have tendered resignations on 15-12-2009 and became employees of the respondent and appointment orders were issued to them on 16-12-2009. Thus, the respondent has created a situation by substituting doctors, consultants and medical staff of the petitioner by resorting to employment of the same personnel and thereby claimed that it has taken charge of the heart center on 16-12-2009. The petitioner had become apprehensive about the conduct of the respondent and therefore it had filed the aforesaid O.P.s for a preventive relief of injunction. Since no injunction was granted, notice was ordered, the respondent has created a situation where the employees and staff of the Petitioner Wockhardt have submitted resignations to their services and thereupon they were appointed by the respondent on the very next day i.e., on 16-12-2009 claiming that the respondent has taken charge of heart center on 16-12-2009 and stated that the petitioner has committed breach of management agreement. The resignations of the doctors and staff of the petitioner were never accepted and without waiting for the acceptance of the resignations, they were shown as employees of the respondent from the next day of their resignations. The resignations of the doctors and staff of the petitioner were never accepted and without waiting for the acceptance of the resignations, they were shown as employees of the respondent from the next day of their resignations. Thus, the respondent has adopted a strange and fraudulent design to highjack the management of the hospital of the petitioner and started claiming that the respondent is running the heart center and that the petitioner had abandoned performance of the management agreement. By the time huge equipment and movable property of the petitioner was stationed in the premises of the respondent, since there is no confidence to the petitioner that such property will be properly used without any damage, it has decided to take away all its movable property from the hospital premises since there remained no staff or consultants of the petitioner to put the equipment to proper use, during the pendency of the said O.P.s. Complaint of the petitioner is that the respondent committed fraudulent breach of the management agreement and since the said agreement had contained an arbitral clause No.23, it has filed the said O.P.s for the aforesaid relief’s but the trial Court had dismissed the O.P.s against which, these appeals are preferred. 7. The petitioner further contends that the respondent is the owner of the two hospitals one at L.B. Nagar, Hyderabad, Rangareddy District and another at King Koti, Boggulkunta, Hyderabad. Admittedly, the parties herein had entered into Ex.P-3 agreement dated 19-05-2005 in respect of the heart center at LB. Nagar hospital and Ex.P-6 agreement dated 23-04-2005 in respect of its hospital at King Koti, Boggulkunta, Hyderabad. Thereby the petitioner has become entitled to exclusive management of the hospital in accordance with the terms and conditions contained in the management agreement. The text and context of both the said agreements is the same and identical. The tenure of the exclusive management contract is initially for a period of ten years with two renewals for initial lock in period of 5 years. 8. The terms and conditions of the two agreements would demonstrate that the petitioner should manage and run the two hospitals of the respondent without any interference of the respondent. The tenure of the exclusive management contract is initially for a period of ten years with two renewals for initial lock in period of 5 years. 8. The terms and conditions of the two agreements would demonstrate that the petitioner should manage and run the two hospitals of the respondent without any interference of the respondent. The terms and conditions of the management agreement are exhaustive as regards the exclusive right of the management and revenue sharing etc., Clause 16 of the two agreements provided for a contingency of termination and it has laid down that a period of 5 years shall be “lock in period.” After expiry of the said lock in period, the respondent can terminate the management agreement after it has issued notice of 180 days. In other words, when the respondent issues a notice of termination disclosing the deficiency or defect, the petitioner shall cure the same remedy within 180 days and only on such default, the termination of the agreement would come into effect. Thus, it is clear that there is a prohibition against both the parties from committing a breach of the agreement for/during the lock in period of 5 years, which will be valid up to 23-04-2-010 in respect of King Koti hospital, Boggulkunta, Hyderabad, and up to 19-05-2010 in the case of L.B. Nagar hospital. Thus, the action of the respondent in eliminating the petitioner from the management of the hospitals and styling and assuming to have taken over the management of the two hospitals from 16-12-2009 is contrary to the specified lock in period condition. That apart, the respondent has not issued any notice to the petitioner pointing out any defect, within the scope and ambit of Clause 16 of the management agreement. Thus, the action of the respondent in assuming the management of two hospitals with effect from 16-12-2009 is a clear breach of contract. 9. The petitioner further contends that the stand taken by the respondent that the petitioner has absconded from the management of the hospital with effect from 16-12-2009 is without any basis whatsoever. There is no evidence on record to substantiate such a contention except one letter, which was marked as Ex.R-2 dated 15-12-2009. 9. The petitioner further contends that the stand taken by the respondent that the petitioner has absconded from the management of the hospital with effect from 16-12-2009 is without any basis whatsoever. There is no evidence on record to substantiate such a contention except one letter, which was marked as Ex.R-2 dated 15-12-2009. The genuineness and correctness of the same was seriously disputed by the petitioner in O.P. 155 of 2010 at paragraph 23, wherein, it is contended that the authorized representative of the petitioner is Mr. Habil Khoraki wala, Chairman and Managing Director of the petitioner, has executed the management agreement and the executants of the disputed letter Ex.R-2 dated 15-12-2009 is Mr. Sudhakar Jadhav, who was never appointed as authorized signatory of the petitioner. That apart, the contents of the disputed letter Ex.R-2 is unbelievable in the face of the police complaint (Ex.P-10), which was given by the petitioner. Above all, very circumstance that all the employees of the petitioner were made to resign to their employment on 15-12-2009 and the same set of persons were appointed as employees of the respondent, would clearly demonstrate that the respondent has enforced a strategy to create the situation of taking over the management of the hospital by resorting to deceit and fraud. When the lock in period has not expired and if there is an attempt of abandonment of performance of the agreement by the petitioner, the respondent should have taken steps to prevent such a contingency since the management agreement is binding on both the parties and both of them are entitled to enforce the same against the defaulting party. Thus, the probabilities clearly demonstrate the contention of the respondents that petitioner has absconded from performing the management agreement, is false and invented for the purpose of the case. Another circumstance i.e., the petitioner filing O.P. 2417 of 2009 for an injunction to restrain the respondent from interfering with the performance of the management agreement is a positive circumstance that the petitioner has always been attempting to abide by the management agreement and implement the same. Hence, there is no force in the contention of the respondent that the petitioner has abandoned the performance of the management agreement. Hence, there is no force in the contention of the respondent that the petitioner has abandoned the performance of the management agreement. On the other hand, the probabilities of the case would point out that the petitioner has been desperately attempting to perform its obligations under the management agreement and it is the respondent who has been trying to find ways and means to wriggle out of the performance of the management agreement. Hence, it is prima-facie established by the petitioner that the respondent had committed breach of contract by winning over the employees and the staff of the petitioner and making them to resign to service with the petitioner and further making them to take appointment in the service of the respondent. Suffice it to say that the respondent had adopted a novel technique of creating a situation whereby the staff and control of the petitioner over the hospital has gone into the hands of the respondent with the same staff. Adding to this, the respondent has filed documents which are resignation letters submitted by the employees of the petitioner and appointment orders issued by the respondent to them. It is not known as to how the respondent was able to get hold of a copy of the resignation letters that were submitted by the employees of the petitioner. Without an acceptance, a resignation letter would not come into force. The petitioner had never accepted the resignation letters. Strangely, all the employees of the petitioner without waiting for acceptance of their resignations have been appointed in the respondent hospital. All the circumstances, would clearly point out that the respondent has played fraud upon the petitioner and invented a game plan to get back into the control of the hospitals by forcibly eliminating the petitioner from enforcing the management agreement. The petitioner submits that a prima-facie case is made out for an appropriate interim orders in its favour so that the arbitration clause contained in para 23 of the Management Agreement can ensure to the benefit of the petitioner who suffered serious damage on account of the fraudulent action of the respondent. 10. Petitioner further submits that clause 23 of the Management Agreement has provided for resolution of the dispute by way of arbitration under clause 23.2 (d) reads as under. “Performance during arbitration. 10. Petitioner further submits that clause 23 of the Management Agreement has provided for resolution of the dispute by way of arbitration under clause 23.2 (d) reads as under. “Performance during arbitration. Pending the submission of and/or decision on a dispute, a difference, or claim or until the arbitral award is published, the parties shall continue to perform all their obligations under this agreement without prejudice to a final adjustment in accordance with such award.” Above covenants between the parties would require performance of the agreement even during the arbitration and until the award is published. Thus, there is no escape to the respondent to contend that the petitioner cannot perform the management agreement and that it will manage two hospitals on its own. The above clause in the management agreement is binding on the parties and in the face of such a covenant, even a valid termination of the agreement would not enable any party from the liability of continued performance of the agreement. In the light of the above covenants, whatever defence is taken by the respondent, the petitioner is entitled to have exclusive right of the management over the two hospitals. Thus, it is contended that the petitioner is entitled to be appointed as receiver to run the hospitals pending arbitrary proceedings. The learned counsel appearing for the petitioner submits that out of the various prayers that were made in the petitions, filed under Section 9 of the Act, the petitioner is seriously agitating the following two reliefs. a) Appointment of Petitioner as receiver to run the hospitals. b) Injunction restraining the respondent from entering into any agreement with third party as regards the management of the hospital or property of the respondent in which the hospitals are housed. Written submissions are also made by the petitioner Wockhardt hospitals to that effect. 11. As regards the relief of appointment of the petitioner as receiver, the trial Court has rejected the same on the ground that counsel for the petitioner during the course of arguments has agreed that either the petitioner be appointed as receiver or the respondent be appointed as receiver and therefore there is no merit in the claim of the petitioner for his appointment as receiver. Further the Court below held that when the petitioner is out of possession, it cannot be appointed as receiver, which amounts to dispossessing the respondent from the suit schedule property. This conception of the Court below is not correct. The present contract is not in the nature of title and possession dispute. The exclusive entitlement of the petitioner is to manage the hospitals without any interference from the respondent for the term or further terms i.e., initially 10 years and/or subsequent 20 years. When the parties have entered into such a contract with the idea of the time span be 30 years, it has to be construed that the result of the management agreement is spread over a long term and a term of 30 years is more than the effective time of one generation. When the agreement has provided that the lock in period itself is 5 years, conduct of the respondent in unilaterally taking over the management even before the expiry of the lock in period, is a gross illegality and hence the respondent is guilty of breach of the contract. The remedy for such breach has to be given by the arbitrator under Clause 23 of the agreement. The contention of the learned counsel for the respondent that the management agreement is not specifically enforceable and therefore the remedy available for the petitioner is for the damages to be awarded by the arbitrator is unsustainable but impermissible in a petition under Section 9 of the Act. While exercising jurisdiction under Section 9 of the Act, it is not open to the Court to record a finding as to whether the agreement between the parties is specifically enforceable or not. Such a finding would be nothing but usurping the jurisdiction of the arbitrator. The further contention of the respondent placing reliance under Section 14 of the Specific Relief Act, 1936, that a contract of this nature cannot be specifically enforceable, should not be considered at this stage. Such a contention is permissible before the arbitrator. The mind of the arbitrator and the relief which the arbitrator can/may grant shall not be visualized by the Court while deciding petition under section 9 of the Act. Limited jurisdiction under Section 9 of the Act is to pass appropriate interim orders preserving subject matter of the dispute so that an effective award can be passed by the arbitrator. The mind of the arbitrator and the relief which the arbitrator can/may grant shall not be visualized by the Court while deciding petition under section 9 of the Act. Limited jurisdiction under Section 9 of the Act is to pass appropriate interim orders preserving subject matter of the dispute so that an effective award can be passed by the arbitrator. The learned counsel appearing for the petitioner placed reliance on para 41 of the judgment of the Supreme Court, in a decision reported in N. Srinivass Vs. Kuttukaran Machine Tools Limited 2009 (5) SCC 182 , wherein it was held as follows : “41. At the same time, considering the fact that some time would be required for the arbitrator to pronounce his award wherein the question whether time was of the essence of the contract or not would be required to be determined and if the parties are directed to maintain status quo in respect of the property in dispute till such award is passed, and for that reason, the respondent would not be entitled to transfer, alienate the property in dispute during the pendency of the arbitration proceeding and considering the balance of convenience and inconvenience of the parties, we feel it proper to direct the appellant to deposit the balance amount of Rs.4,99,03,829/- (Four crores ninety-nine lakhs three thousand eight hundred twenty-nine) within a period of three months from the date of supply of a copy of this order to the VI Additional City Civil Judge, Bangalore, in fixed deposit for a minimum period of six months initially in a nationalized bank in favour of the respondent and renew the same till the disposal of the dispute before the arbitrator. The original fixed deposit receipt shall be kept with the arbitrator.” 12. The jurisdiction under Section 9 has to be exercised with reference to each case on its own facts. Having entered into the management agreement and having allowed the petitioner to manage the hospitals for about 4 years, respondent cannot unilaterally eliminate the petitioner from the hospital by resorting to fraud and deceit. The conduct of the parties is paramount consideration for the purpose of exercise of judicial discretion in the petition filed under Section 9 of the Act. Having entered into the management agreement and having allowed the petitioner to manage the hospitals for about 4 years, respondent cannot unilaterally eliminate the petitioner from the hospital by resorting to fraud and deceit. The conduct of the parties is paramount consideration for the purpose of exercise of judicial discretion in the petition filed under Section 9 of the Act. Petitioner is entitled by reason of the terms and conditions of the contract to have exclusive right of the management for the initial term of 10 years and the subsequent terms also. Since the respondent has not terminated the management in terms of Clause 16 of the agreement, since the respondent has taken a stand that the petitioner has abandoned performance of the agreement, it is just and necessary that the petitioner be appointed as receiver since the status of the petitioner in the light of the terms and conditions of the agreement is equivalent to that of a receiver. It is not the case of the respondent that the petitioner has no infrastructure or technology to continue to run the hospitals. In the face of the covenant contained in clause 23. 2 (d) of the management agreement, it is just and necessary that the High Court may appoint the petitioner as receiver so that the subject matter of the dispute is amply safeguarded by imposing appropriate terms and conditions while appointing the petitioner as receiver of the two hospitals. 13. The learned counsel appearing for the petitioner further submits that the other relief’s claimed by the petitioner is an injunction restraining the respondent from entering into agreement with any third party either with regard to the management of the hospitals or with regard to the properties of the hospitals. It is submitted that the petition schedule properties must exist and the respondent must continue as owner of the same till the arbitrary proceedings are concluded and an award is passed in favour of the respondent. Section 9 of the Act emphasizes on preservation of the disputed property pending arbitral proceedings. Since the petitioner has made out a prima-facie case of its entitlement for exclusive management of the hospitals, the balance of convenience lies in restraining the respondent from creating any third party rights or interest either with regard to the management or with regard to the properties of the hospitals. Since the petitioner has made out a prima-facie case of its entitlement for exclusive management of the hospitals, the balance of convenience lies in restraining the respondent from creating any third party rights or interest either with regard to the management or with regard to the properties of the hospitals. It is the petitioner who will suffer irreparable loss if such an order is not passed since a situation would enable the respondent to hypothecate and thereafter default in payment of the loan and expose the property of the hospitals to auction/sale at the instance of the creditors, since such a contingency would bring third parties as owners and the petitioner would not be in a position to get the relief from the arbitrator. In this context, it is stated by the respondent in its counter that it has no plan to enter into agreement with third parties. Having filed such an affidavit in the court, the respondent cannot go back from the statement on oath on any ground whatsoever. Therefore, the learned counsel appearing for the petitioner contends that the petitioner is entitled to grant an order of injunction restraining the respondent from creating third parties rights of any nature whatsoever both on the management of the hospitals and on the immovable properties of the hospitals. 14. It is further contended that the trial court has failed to analyze the terms and conditions of the management agreement and circumstances of the case. The finding of the trial court that no injunction can be granted against a true owner is erroneous and misconceived. The concept of true owner and injunction arises in the case of dispute relating to the title and possession. Such a principle cannot be followed and applied to a contract where the exclusive right of the management is conferred for a period of 10 years and above. Thus, the findings of trial Court are unsustainable and the trial Court has failed to draw appropriate inferences from the probabilities of the case. 15. Thus the learned counsel appearing for the petitioner submits to consider the case of the petitioner for appointment as receiver in respect of the two hospitals subject to such terms and conditions and also grant an injunction restraining the respondent from creating any third party rights or interest in respect of the management of the hospitals by way of encumbrances/alienation/or otherwise pending arbitral proceedings. 16. 16. Submissions of the Respondent: On the other hand, the learned counsel appearing for the respondent submits that though various relief’s have been sought for in the O.P.s filed under Section 9 of the Act, by the petitioner, senior counsel appearing for the petitioner fairly submitted that the petitioner is not pressing various reliefs except the following two reliefs : a) Appointment of petitioner as receiver to run the hospitals. b) Injunction restraining the respondent entering into any agreement with third parties as regards the management of the hospital or property of the respondent in which the hospitals are housed. 17. In view of the aforesaid contentions of the learned counsel appearing for the petitioner admitting that other reliefs are not pressed and to that effect, written submissions were also made in paragraph 7 of the written submissions. The controversies in the O.P.s, which are subject matter of these appeals, are narrowed and restricted by the petitioner with regard to the aforesaid two reliefs only. Therefore, the learned counsel appearing for the respondent seriously opposes to grant any relief even for the aforesaid two reliefs. 18. The petitioner filed O.P. No.2417 of 2009, seeking a relief of restraining the respondent from interfering in conducting management and operation of the Wockhardt Kamineni Hospitals pending submission and decision of arbitral award. It is stated that the management agreement dated 19-05-2005 was entered only with regard to the service in cardiac unit of hospitals and all other services of the hospitals are not subject matter of the said management agreement and the same are being always owned, managed and operated by the respondent alone. The respondent herein received a letter dated 15-12-2009 Ex.R-2 from the petitioner stating that all the doctors, consultants and various employees have resigned from the services of the petitioner and in view of the resignations, petitioner is unable to manage and operate the facilities in the cardiac unit of the hospital and further the petitioner through the said letter informed the respondent that they are withdrawing from the management and operation of their facilities in the cardiac unit of the hospital on 15-12-2009 and in response to the said letter, consequently with effect from 16-12-2009, in the interest of the patient community, reputation of the hospital, respondent is managing and operating all the facilities in the cardiac unit of the hospital. 19. 19. Respondent further contends that many of the doctors and staff members who have resigned from the services of the petitioner, have approached the respondent for employment and the respondent on satisfying about their resignations from the service of the petitioner, and on collecting the duplicate copies of their resignations with the original endorsement of the acceptance given by the petitioner, the respondent has taken them into employment by issuing appointment orders. 20. The petitioner has voluntarily without any prior notice in a hasty manner withdrawn from the services and the management of the facilities in the cardiac unit of the hospital and by virtue of the same, respondent has no option but to manage all the facilities in the cardiac unit of the hospital with effect from 16-12-2009. Petitioner has withdrawn itself from the management and services with effect from 15-12-2009 again without any reasons whatsoever, chosen to file aforesaid O.P. 2417 of 2009 on 17-12-2009 but as on the date of filing the O.P. i.e., on 17-12-2009 onwards, petitioner is not managing the services in the hospital and sought for a relief of directing the respondent not to interfere with the management of the hospital by the petitioner. The petitioner also filed Ex.R-8 police complaint dated 17-12-2009 stating that the respondent has illegally taken over the possession of the facilities in the hospital. In the said police complaint, there was a categorical admission by the petitioner regarding the fact of the management and operation of all the facilities in the hospital by the respondent with effect from 16-12-2009. The petitioner also has chosen to file O.P. No.169 of 2010 claiming that as on the date of filing the said O.P. petitioner is still managing the services of the hospital and sought for a relief of directing the respondent herein not to interfere with the management of the hospital by the petitioner. The petitioner filed a police complaint Ex.P-10 in O.P.169 of 2010 stating that the respondent has illegally taken over the possession of the facilities in the cardiac unit of the hospital. There was a categorical admission by the petitioner about the fact of management and operation of the facilities of the cardiac unit of the hospital by the respondent with effect from 16-12-2009. There was a categorical admission by the petitioner about the fact of management and operation of the facilities of the cardiac unit of the hospital by the respondent with effect from 16-12-2009. Thus, it is contended that even according to the petitioner, the respondent is performing the management and he is in management and operation of all the facilities in the cardiac unit with effect from 16-12-2009 and therefore, the petitioner is not entitled to any of the reliefs as sought for. It is further stated that the court below rightly realized that nothing survived for adjudication in O.P. No.2417 of 2009 and O.P. 155 of 2010 even for the aforesaid reliefs and as such appointment of receiver directing the respondent not to use utilities, the movable properties of the petitioner lying in the schedule property, not to create any third party interest and to appoint Advocate Commissioner to take inventory of the movables belonging to the petitioner not considered. 21. Thus, the petitioner is taking conflicting versions while claiming that it is managing and operating the facilities in the cardiac unit of the hospital and on the other hand, it also asserted that the respondent forcibly taken possession of the facilities from the petitioner and thus the petitioner kept in changing the circumstances to suit its requirements from time to time. The averments taken by the petitioner are contrary to each other and the petitioner has not approached the court with clean hands and filed petition after petition by way of chance litigation. 22. During pendency of the O.Ps, petitioner filed a memo before the Court below showing the list of movable properties belonging to it lying in the hospital and the respondent filed a detailed memo before the Court below giving particulars of the movables belonging to the petitioner that are lying in the hospital premises and further stated that the respondent has no objection for the petitioner taking away all the movables belonging to it and consequently the Court below passed consent order allowing the petitioner to take away all the admitted movables. In fact, the respondent filed I.A. 865 of 2010 in O.P. 155 of 2010 with a prayer to direct the petitioner to take away all the movables belonging to it lying in the respondent hospital premises in the presence of the representatives of both sides under detailed acknowledgment. In fact, the respondent filed I.A. 865 of 2010 in O.P. 155 of 2010 with a prayer to direct the petitioner to take away all the movables belonging to it lying in the respondent hospital premises in the presence of the representatives of both sides under detailed acknowledgment. Petitioner herein filed its counter in the above I.A. and ultimately the Court below passed docket orders directing the petitioner to take its movables as per Annexure-I and III appended to I.A. 865 of 2010. In pursuance of the said orders, major part of the items were taken over by the petitioner under acknowledgment in the presence of the representatives from both sides from 19-05-2010 to 24-05-2010. The particulars have also been furnished in the form of booklet and thereafter the team of the petitioner left without taking delivery of the balance items. Thus, it is stated that the court below after perusing the entire material placed on record, dismissed the O.P.s by order dated 13-04-2010. By dismissal of O.P.s 2417 of 2009 and O.P. 155 of 2010, the petitioner filed I.A. 1680 of 2010 for appointment of Advocate Commissioner for taking over all remaining items under his supervision and the respondent filed counter expressing its no objection and the said petition was allowed and the Advocate Commissioner executed warrant and concluded the proceedings in respect of King Koti Hospital, on 01-07-2010 and the entire material belonging to the petitioner is taken away by the petitioner as is evident from various documents filed in the booklet by the respondent in C.M.A. No.491 of 2010. It is stated that the petitioner is not entitled for any relief much less the relief of passing any order in favour of the petitioner by appointing the petitioner as interim receiver as governed by the provisions of the C.P.C. under Order 40 Rule 1, which reads as follows : Appointment of Receivers : 1) Where it appears to the Court to be just and convenient, the Court may by order --- a) Appoint a receiver of any property, whether before or after decree ; b) Remove any person from the possession or custody of the property ; c) Commit the same to the possession, custody or management of the receiver and d) Confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and execution of documents as the owner himself has, or such of those powers as the Court thinks fit. 23. It is stated that the appointment of the receiver is a matter resting in the discretion of the Court. The appointment of receiver cannot be pointed out unless the petitioner shows a prima-facie case that he has very excellent chances of succeeding in the case and the petitioner himself must show some emergency or danger or loss demanding immediate action and of his own right, he must be reasonably clear and free from doubt, the element of danger is an important consideration. 24. Admittedly, the immovable property i.e., hospital, buildings and land is not subject matter of the dispute, and the claim is only with regard to the management and operation of certain facilities in the hospital unit of cardiac center and there is absolutely no such submission or allegation made by the petitioner that the property is subjected to wastage or damage in the hands of the respondent. When there is no element of danger or loss demanding imminent action to the subject property, a receiver would not normally be appointed. Admittedly, the respondent is the owner of the entire land and hospital building. Respondent has been managing and operating the facilities in the hospital with effect from 16-12-2009. When there is no element of danger or loss demanding imminent action to the subject property, a receiver would not normally be appointed. Admittedly, the respondent is the owner of the entire land and hospital building. Respondent has been managing and operating the facilities in the hospital with effect from 16-12-2009. Respondent being the lawful owner of the property has been managing the affairs of the petition schedule property with effect from 16-12-2009 and when there is no element of danger being caused to the hospital, which is being run in the hands of the respondent and in the absence of even bare averment in the petition showing any prima-facie evidence in substantiation of such averment, the petitioner is not entitled for appointment of receiver. Some reliefs had become infructuous in view of the fact that all the movables of the petitioner in the premises of respondent hospital were already handed over by an Advocate Commissioner appointed by the Court below and even the petitioner passed an acknowledgment in respect of the movables items which were handed over by the respondent. Petitioner having voluntarily withdrew from the management and operation of its facilities in the hospital, again not entitled to be appointed as interim receiver to take control of the administration and on the other hand, any such appointment causes irreparable loss and injury to the respondent and further the petitioner itself has voluntarily withdrawn from the management of the facilities with effect from 15-12-2009; Since the petitioner could not able to manage the hospitals with effect from 16-12-2009, the respondent is managing and operating all the services in the hospital. Respondent herein is the lawful owner of the hospital building, equipment and the petitioner is not the owner. 25. The learned senior counsel appearing for the respondent submits that the petitioner has not made out any specific averment or allegation of likely wastage or damage to the property warranting appointment of receiver and in the absence of any averment in respect of danger or wastage to the petition schedule property, principles governing appointment of receiver are not attracted to the facts of the case. 26. Senior counsel for the respondent also placed reliance on the judgments of the Apex Court, reported in Paramanand Patel (dead) by L.R. and another Vs. Sudha A. Chowgule and others 2009 (4) ALD 7 (SC), Wherein it was held that : “15. 26. Senior counsel for the respondent also placed reliance on the judgments of the Apex Court, reported in Paramanand Patel (dead) by L.R. and another Vs. Sudha A. Chowgule and others 2009 (4) ALD 7 (SC), Wherein it was held that : “15. A receiver having regard to the provisions contained in Order 40 Rule 1 of the Code of Civil Procedure, is appointed only when it is found to be just and convenient to do so. Appointment of a receiver pending suit is a matter, which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint2 a receiver save and except on a prima-facie finding that the plaintiff has an excellent chance of success in the suit. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily a receiver would not be appointed unless a case has been made out which may deprive the defendant of a de-facto possession. For the said purpose, conduct of the parties would also be relevant.” In a decision reported in Anupama Homes India Private Limited., Ranga Reddy District Vs. P. Shourie Raja and others 2007 (6) ALD 145 , this court held that : “13. Before dwelling deep on the rival contentions of the parties, I deem it appropriate to note the scope of the Order 40 of Code of Civil Procedure which contemplates the appointment and discharge of receivers. Whenever it appears to the court to be just and convenient, the Court may appoint a receiver of any property whether before or after the decree. The words ‘just and convenient’’ did not mean that the Court is to appoint a receiver merely because the Court thinks it convenient and they mean that the Court thinks it convenient and they mean that the Court should appoint a receiver for the protection of rights or for the prevention of injury. The order is no doubt discretionary but the discretion must be exercised in accordance with the principles on which judicial discretion is exercised. 14. The order is no doubt discretionary but the discretion must be exercised in accordance with the principles on which judicial discretion is exercised. 14. Generally speaking the appointment of a receiver is recognized as one of the harshest remedies, which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appoint of a receiver is exposed to manifest peril” In a decision reported in T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty AIR 1955 Madras, 430, Madras High court held that : In the said case, the Madras High court laid down five principles, which are described as panch sadachar, They are: 1) The appointment of a receiver in a pending suit is a matter resting in the discretion of the Court. 2) The Court should not appoint a receiver except upon proof that prima-facie the plaintiff has a very excellent chance of succeeding in the suit. 3) Apart from the conflicting claims to the property the plaintiff must show some emergency or danger or loss demanding immediate action and therefore, the element of danger is an important consideration. 4) Where the property is shown to be in medio, that is to say in the enjoyment of none, and 5) The conduct of the party who made the applications shall be free from blame. In a decision reported in Bhupathiraju Venkata Ramaraju Vs. Bhupathiraju Ramakrishnamraju and Others 1996 (4) ALD 241 , this Court noted : Civil Procedure Code, 1908 – Order 40, Rule 1 – Appointment of receiver – suit for partition – no prima-facie case shown that the applicant is entitled to a share in the suit properties – no evidence to show that the respondents are allowing the properties to go waste or frittering them away – appointment of receiver or a discretion to respondents to deposit amounts in court towards the share of the applicant – not called for. In a decision reported in Chelikam Rajamma Vs. Padileti Venkata Swami Reddy and others 1993 (2) ALT 154 , Division Bench of this court held that : “11. In a decision reported in Chelikam Rajamma Vs. Padileti Venkata Swami Reddy and others 1993 (2) ALT 154 , Division Bench of this court held that : “11. From an analysis of Order 40 Rule 1 of the Code of Civil Procedure in the light of the case law in relation to partition suit, the following propositions may be deduced : 1) The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances. 2) The party seeking the appointment of receiver must make out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence. 3) If prima-facie, the plaintiff has excellent chance of succeeding in the suit, there being no denial with regard to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession will be a relevant consideration for directing the opposite party to deposit a sum of money approximately representing the value of the yield pertaining to the share of the plaintiff pending disposal of the suit. Even in such circumstances, a receiver should not be appointed to oust the possession of the opposite party from the joint family properties. The protection of the properties and safeguarding of the rights of the parties shall be the twin objectives impelling the appointment of receiver.” 27. Since the counsel appearing for the respondent submits that in view of the decisions cited supra, there is no emergency, danger or loss to the petitioner herein demanding immediate auction to the petition schedule property and the appointment of the petitioner herein as interim receiver will be granted only where the property shows to be in medio i.e., to say enjoyment of none. Further, in the present case, it is submitted that the respondent is exclusively managing and operating all the services in the petition schedule property with effect from 16-12-2009 pursuant to the voluntary withdrawal of the petitioner from the management of the operation of its facilities in the hospital on 15-12-2009 and pursuant to such withdrawal, in the interest of the patient community and inpatients and to save the reputation of the hospital, respondent is managing and operating all the services in the hospital with effect from 16-12-2009 and further petitioner is claiming that the possession of the services in the hospital were illegally taken over by the respondent and it is respectfully submitted that on the other hand, petitioner itself voluntarily withdrew from the services and the dispute if any as regards to illegal taking over of possession will be the subject matter before the arbitral proceedings. Petitioner itself having voluntarily withdrawn from the services of the hospital and having already taken back all its material and belongings from the hospital, it is not now open to the petitioner to make illegal claims and hence the question of appointment of receiver does not arise. 28. The petitioner is not entitled to any relief much less the relief restraining the respondent, agents, employees, representatives or any person claiming through the respondent from creating any rights or interest in favour of the third party in respect of the schedule property by way of entering into any agreement/deeds etc., including by way of charges, mortgage, encumbrance etc., The respondent is the absolute owner and possessor of the land, buildings, equipment and other items in the full fledged hospital and further admittedly, petitioner has already taken away all the items belonging to it from the hospital premises and the respondent itself is managing and running the hospital with effect from 16-12-2009. The respondent has established the hospitals including the subject hospital and it has earned good reputation and image among the people and the respondent is capable of managing and operating the hospital and hence the allegation that the respondent is about to create third party interest is without any basis. 29. The respondent has established the hospitals including the subject hospital and it has earned good reputation and image among the people and the respondent is capable of managing and operating the hospital and hence the allegation that the respondent is about to create third party interest is without any basis. 29. The learned counsel further submits that before the Court below, respondent denied the allegations of the petitioner that the respondent is attempting to create third party rights in view of the fact that number of movable items were lying in the cardiac unit of the hospital premises by that time. Further, as stated above, during the pendency of the O.P.s before the court below and even after dismissal of the O.P.s the petitioner herein has taken all its movables under the acknowledgment before the Advocate Commissioner appointed by the Court below and hence the petitioner now cannot turn up and claim any right or entitlement over the subject matter and further cannot claim injunction restraining the respondent from creating any third party interest. In the management agreement dated 23-04-2005 and 19-05-2005, the following clauses are stipulated as under : Clause 8 (a) : The owner shall be entitled to create mortgage or charge on the land, buildings and the equipments, provided that it shall not create any lien or encumbrance by way of mortgage, charge or otherwise (save and except the existing mortgage created in favour of Indian Bank by the Owner), on the Land ad Building and/or the equipments, until the repayment of the advances and the deficit advance. It is further clarified that any such mortgage or charge created by the owner after the repayment of the advances and the deficit advance shall always due without prejudice of the rights of the Wockhardt under this agreement. Clause 9 (II) : The owner shall be entitled to create mortgage or charge on the land and buildings and the equipment provided however that until the repayment of the advances and the deficit advance the owner shall not create any lien or encumbrance by way of mortgage, charge or otherwise (save and except the existing mortgage created in favour of Indian Bank by the Owner), on the land and buildings and/or the equipment. It is further clarified that any such mortgage or charge created by the owner after the repayment of the advances and the deficit advance shall always be prejudice of the rights of the Wockhardt under this agreement. 30. It is submitted that there is no deficit advance or advance lying with the respondent herein and hence even as per the terms of the agreement, there is no prohibition or restriction for creating charge. It is further submitted that when the petitioner itself has voluntarily withdrawn from its services in the Hospital and when this respondent is admittedly managing and operating all the services in the hospital w.e.f. 16-12-009, being the full fledged owner of the land, building, equipment and all the services, the petitioner is not entitled to above relief since the petitioner, as stated supra failed to make out a prima-facie case in its favour and on the other hand, the balance of convenience is in favour of the Respondent. Section 14 of the Specific Relief Act, 1963, stipulates as under : 14. Contracts not specifically enforceable : (1) The following contracts cannot be specifically enforced, namely : (a) a contract for the non-performance of which compensation in money is an adequate relief ; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or violation of the parties or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms ; (c) a contract which is in its nature determinable. (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. (2) Save as provided by the Arbitration Act, 1940 (10 of 1940) no contract to refer present future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of subsection (1) the Court may enforce specific performance in the following cases : - a) Where the suit is for the enforcement of a contract --- (i) To execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once : (ii) to take up and pay for any debentures of a company b) Where the suit is for --- (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership or (ii) the purchase of a share of a partner in a firm. c) Where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land : Provided that the following conditions are fulfilled namely : -- (i) The building or other work is described in the contract in terms sufficiently precise to enable the Court to determine the exact nature of the building or work ; (ii) The plaintiff has a substantial interest in the performance of the contract and the interest is of such nature that compensation in money for non-performance of the contract is not an adequate relief ; and (iii) The defendant has in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. 31. It is stated that in view of the above provisions and in the light of the facts and circumstances, the petitioner is not entitled to the relief claimed for and hence, it is stated that the petitioner is not entitled for any relief even with regard to the aforesaid two reliefs. 32. Conclusions: Under Section 9 of the Act, the Court is entitled to preserve the property when the subject matter of the property of the dispute is in arbitration and also entitled to grant interim injunction or appointment of an receiver and also grant such other interim measure of protection as may appear to the Court to be just and convenient in relation to any proceedings before it. The subject matter of the dispute in the instant case is with regard to the management of cardiac center in the hospital under the management agreement. Both the parties have agreed for the terms and conditions of management of the cardiac centers and while managing the cardiac centers, the income derived from the management of the cardiac centers have to be apportioned among the parties in a particular manner/proportion. As it is stated that the petitioner has got rich experience, the machinery, management of the cardiac centers have been given in favour of the petitioner. Admittedly, the buildings and all other units including the permanent structures of the cardiac center belong to the respondent. The petitioner has brought the machinery and engaged the doctors, nurses, staff etc., and it has run for a period of four years. According to the petitioner, the respondent has strangely taken over the management of the cardiac centers by creating a false situation as if the petitioner has appointed the management and doctors, employees and staff have resigned from the management of the petitioner and that the respondent has appointed the very same set of doctors and employees and managing the cardiac center with effect from 16-12-2009. Admittedly, though the petitioner has claimed various reliefs in the aforesaid three O.P.s, but fairly admitted that the petitioner has taken all its equipments and therefore restricts its relief of appointment of petitioner as a receiver and to protect the property from creating any charge or entering any agreement of the management in favour of the third party. The scope of the dispute before the arbitration is not crystallized so far. However, the questions that arose for consideration are : As to whether the respondent is entitled to terminate the management agreement within the lock in period of 5 years and whether the petitioner itself abandoned the management of the cardiac unit and whether the doctors and employees voluntarily resigned and whether the resignations have been accepted or not, and whether the appointment of very set of same staff by the respondent is valid or invalid, are all the matters to be resolved before the arbitrator. 33. 33. The only question that arises for consideration as to whether the petitioner is presently in any management of the cardiac unit entitled to be appointed as a receiver and also for the interim injunction restraining the respondent from creating a charge i.e., injunction restraining the Respondent from entering into any agreement with the third parties as regards the management of the Hospital or the property of the Respondent in which the Hospitals are housed, in favour of the third parties. 34. The petitioner is neither owner of the buildings nor land but it has a right to manage the cardiac units subject to fulfillment of the terms and conditions within a particular period under the management agreements. Therefore, the decision 1st cited supra by the petitioner relates to suit for specific performance agreement of an immovable property and the subject matter of the immovable property in dispute and the scope of the arbitration, and therefore the preservation of the immovable property till the award is passed subject to certain terms and conditions, maintained status-quo. In the instant case, there cannot be any order of status-quo or preserving the property subject matter of the dispute in the arbitration. The subject matter of the dispute in arbitration in the instant case is with regard to reciprocal obligations relating to management under the management agreement. No doubt, if the petitioner succeeds before the arbitrator with regard to the subject matter of the dispute in arbitration, it is for the arbitrator to pass appropriate reliefs but that relief cannot go beyond the scope of the arbitration agreement. In the instant case, the petitioner is not in management of the cardiac unit and it has already taken over all its movable and immovable items and therefore under Section 14 of the Specific Relief Act, the contract for non performance of which a compensation of money is an adequate relief, such contract cannot be enforced under the Specific Relief Act. In the instant case, the petitioner’s interest is to run the cardiac centers as per the management agreement and it has no right, title or interest either over the land or on the buildings. In the instant case, the petitioner’s interest is to run the cardiac centers as per the management agreement and it has no right, title or interest either over the land or on the buildings. It is not the case of the petitioner that the respondent is not solvent and that the respondent is not in a position to compensate the money that may be awarded by the arbitrator as an adequate relief for non-performance of the contract by the respondent. The solvency of the respondent cannot be doubted or disputed. It is not the case of the petitioner that the petitioner will not be in a position to recover the money sustained by it by reason of the alleged illegal determination of the contract of the respondent. If the petitioner succeeds before the arbitrator with regard to the subject matter of the dispute in arbitration, it cannot be said that the petitioner will not be in a position to execute the said arbitral award. 35. We are of the opinion that in view of the aforesaid facts and circumstances, the petitioner is not entitled for any reliefs, as sought for. We do not see any ground to interfere with the order of the Court below and the appeals are accordingly dismissed. No order as to costs.