JUDGMENT ( 1. ) THIS civil miscellaneous appeal is directed against the order 02.08.2010, and made in Arb.O.P.No.1 of 2010 on the file of the Learned Principal District Judge, Theni District. ( 2. ) THE facts which are absolutely necessary for the disposal of this civil miscellaneous appeal is summarized briefly as follows; This civil miscellaneous appeal is preferred by the respondent in the arbitration application No.1 of 2010. The respondent herein, has filed the application under Section 9 of Arbitration and Conciliation Act, 1996 on the file of the Learned Principal District Court. Theni against the appellant herein seeking interim relief pending disposal of the arbitral proceedings. ( 3. ) THE respondent had entered into an agreement of sale with the appellant on 29.11.2006, in respect of the various properties comprised in various survey numbers in Rasiangapuram Village. Bodi Taluk, Pottipuram measuring about 970 acres. THE rate was fixed at Rs.23,500/- per acre, including the value of standing trees. As per clause 3 of the agreement a schedule was drawn up for payment of balance of sale consideration with the final payment being contemplated on or before 20.02.2007. Contemporaneously, the appellant/respondent had also entered into memorandum of agreement with the respondent on 22.09.2006 and thereby the entire possession of the properties was handed over to the respondent/petitioner. This was also confirmed by a letter of the appellant/respondent dated 22.02.2007. ( 4. ) EVEN in spite of several requests were made, the appellant/respondent had not come forward to execute and register the sale deed. Hence the respondent/petitioner had issued a telegram on 28.02.2007 calling upon the appellant/respondent to come for registration and he was also requested to furnish the copy of patta and chitta relating to the properties for the purpose of verifying the title. The appellant/respondent had in their reply dated 28.02.2007, stated that they would be coming by 05.03.2007. However they did not comply with the requests made by the respondent/petitioner. Since the appellant/respondent had represented that certain petitions for winding up were pending before the High Court of Madras, in respect of the group concerned including their company, the respondent/petitioner was waiting expecting the out come of winding up proceedings and he was also under the bonafide impression that the respondent/petitioner would honour the commitment after the culmination of the winding up proceedings. In the interregnum, the respondent/petitioner had appointed workers for felling trees and developing the property as per the MOU, for making the balance of sale consideration to the appellant/respondent. The respondent/petitioner had borrowed huge amount in the month of February, 2007 at the rate of 24% per annum and since the respondent did not come forward for execution of the sale deed, the amount was returned with interest to the person from whom the respondent/petitioner had borrowed. ( 5. ) IN the month of June 2009, the respondent/petitioner was put to understand that the appellant/respondent had been negotiating with the third parties for the sale of property in respect of which he had an agreement of sale. Immediately, the respondent/petitioner had issued a legal notice to the appellant/respondent had venture to alienate the properties in respect of which the respondent/petitioner had an agreement of sale, he was constrained to file a suit in O.S.No.25 of 2009 on the file of the District Court, Theni, seeking an order of injunction restraining the appellant/respondent from alienating the suit schedule properties. Along with the said suit, the respondent/petitioner had also filed an application in I.A.No.120 of 2009 under Section 8 of the Arbitration and Conciliation Act 1996 for referring the dispute to an arbitrator in terms of clause 9 to resolve the dispute arising out of the sale agreement dated 29.11.2006. ( 6. ) THE petition was also allowed on 15.02.2010 referring the subject matter of the dispute to Arbitration as contemplated under Clause 9 of the agreement of sale dated 29.11.2006. Taking advantage of the order, the appellant/respondent with the assistance of some third parties viz., A.S.Farmlands Pvt.Ltd., through the Directors Ajay Chopra and Sarabjeet Singh had attempted to trespass into the property and was trying to take possession of the same. THE said third party has also filed a CAVEATs before various Courts. THE respondent/petitioner had been and has been always ready and willing to perform his part as per the agreement of sale. Only because of evasive answers given by the appellant/respondent, the registration of the sale deed was postponed. In the month of April, 2009 the respondent surreptitiously started negotiating for sale with third parties taking advantage of market conditions, to the detriment of the petitioners rights arising under the agreement of sale dated 29.11.2006. Only because of evasive answers given by the appellant/respondent, the registration of the sale deed was postponed. In the month of April, 2009 the respondent surreptitiously started negotiating for sale with third parties taking advantage of market conditions, to the detriment of the petitioners rights arising under the agreement of sale dated 29.11.2006. Though under separate agreement, possession of the property was handed over to the respondent/petitioner, till date the appellant/respondent has not surrendered the possession of the land in question. The respondent/petitioner has spend several lakhs of rupees for developing the property and protecting the same from various encroachments of erstwhile vendors of the appellant/respondent. Hence, this petition is filed under Section 9 of the Arbitration and Conciliation Act 1996 for interim injunction as against the appellant/respondent. ( 7. ) IT was contended on behalf of the appellant/respondent that the petition under Section 9 of the Arbitration and Conciliation Act 1996 is not at all maintainable as envisaged under Article 54 of the Limitation Act and Section 16 of the Specific Relief Act. The respondent/petitioner had added a number of errors of commissions and omissions and hence he is disentitled for the relief sought for. The appellant/respondent has further contended that as on date no Arbitral proceedings are pending and that though the respondent/petitioner was informed about the nomination of Mr.Justice P.Maharajan a (retired Judge) in the reply to the petitioners notice dated 30.11.2009, till date no proceeding is initiated by the respondent/petitioner. The memo of understanding dated 22.09.2006 has nothing to do with the sale of land. The respondent/petitioner was permitted to enter the land for a limited purpose of cutting and removing trees and at no point of time the physical possession of land was handed over to the respondent/petitioner as alleged. The alleged letter dated 22.02.2007 was created by the respondent/petitioner for the purpose of litigation and no such letter was issued either by the appellant/respondent company or by any employee of the appellant/respondent company. There was no request or any demand from the respondent/petitioner for the execution of the sale deed. The respondent/petitioner is only a broker dealing with the purchase and sale of land and even the purchase contemplated in the sale agreement dated 29.11.2006 is only for selling the same to third party on commission basis and not for the personal use of the respondent/petitioner. The respondent/petitioner is only a broker dealing with the purchase and sale of land and even the purchase contemplated in the sale agreement dated 29.11.2006 is only for selling the same to third party on commission basis and not for the personal use of the respondent/petitioner. Right from the date of claim, the respondent/petitioner was on a search for prospective buyer and he could not succeed in that effort and that was the reason for the petitioners to commit default in the execution of sale deed within the agreed time. The respondent/petitioner was not ready at any point of time to make the balance payment and get the sale deed executed in his favour. The respondent/petitioner could not utilize the opportunity to make the payment before 05.03.2007 and get the sale deed registered in his favour. ( 8. ) THERE was no winding up petition pending at the time of negotiation of the terms of sale and the allegation in this regard are absolutely false. In the letter dated 31.08.2007 there is no mention about the so called winding up petition. Hence the petitioner had defaulted in making the balance within the agreed time. The appellant/respondent had no other option but to terminate the agreement by issuing the letter dated 30.06.2007. Since, the respondent/petitioner was keeping quite unreasonably for a long period, the agreement of sale was terminated as early as on 30.06.2007. The respondent/petitioner never bothered to challenge the termination notice, instead he reconciled himself and accepted the termination. As there was no impediment for the appellant/respondent to sell the land to anybody they wished, a part of the property measuring about 278 acres in Rasingapuram Village was sold on 29.12.2009 to M/s. A.S.Farmlands Pvt. Ltd., through the Directors Ajay Chopra and Sarabjeet Singh and in consequent there of possession was also handed over to them on 02.02.2010 after proper survey of the land by concerned surveyor. Knowing fully well that the respondent/petitioner could not file a suit for specific performance, he had ventured into the suit for permanent injunction alone in O.S.No.25 and 26 of 2009. Since there is an Arbitration clause in the agreement for sale, the appellant/respondent had filed a petitioner under Section 9 of the Arbitration and Conciliation Act 1996. Knowing fully well that the respondent/petitioner could not file a suit for specific performance, he had ventured into the suit for permanent injunction alone in O.S.No.25 and 26 of 2009. Since there is an Arbitration clause in the agreement for sale, the appellant/respondent had filed a petitioner under Section 9 of the Arbitration and Conciliation Act 1996. It is on record that the sale was effected in favour of M/s. A.S.Farmlands Pvt. Ltd., through the Directors Ajay Chopra and Sarabjeet Singh, well before the order of the District Court on 05.02.2010. The respondent/petitioner has no legal right to restrain the appellant/respondent from enjoying the rights over the property. The respondent/petitioner has neither filed a suit for specific performance nor a suit for declaration and he has not even initiated the arbitration proceedings. ( 9. ) THERE is no prima facie case in favour of the respondent/petitioner. Admittedly, the petitioner had not made the balance of payment within the agreed time and there by he has lost his right of specific performance. In the 1st agreement of sale the payment should have been made on or before 22.04.2007 and in the second agreements of sale the payment should have been made on or before 28.02.2007. It is specifically agreed that time is the essence of the contract. Even on the date fixed for registration i.e., 05.03.2007, the respondent/petitioner had failed to make payment and get the sale deed executed. The petitioner was also no ready with money and equally he was not willing to get the sale deed executed. If really he was ready with money he would have forwarded a copy of the Demand Draft for the balance of sale consideration as demanded by the appellant/respondent in their reply 28.022007 or he could have sent a bank statement to establish that he was having sufficient amount in his account towards payment of sale consideration. Hence the respondent/petitioner is not eligible for the discretionary relief of injunction. ( 10. ) HEARD both sides. Before we go into the merits of the appeal it may be relevant to refer the order of this Court dated 05.01.2011 and made in O.P.No.502 of 2010 by this Lordship Hon?ble the Chief Justice of this Court. In the said order the Hon?ble Chief Justice was pleased to appoint the Hon?ble Mr. ( 10. ) HEARD both sides. Before we go into the merits of the appeal it may be relevant to refer the order of this Court dated 05.01.2011 and made in O.P.No.502 of 2010 by this Lordship Hon?ble the Chief Justice of this Court. In the said order the Hon?ble Chief Justice was pleased to appoint the Hon?ble Mr. Justice M.V.Balasubramanian a retired Judge of this Court as the sole arbitrator to adjudge the dispute between the Respondent/petitioner and the appellant/respondent pursuant to Clause 9 of the sale agreement dated 21.11.2006. While passing the order His Lordship Hon?ble the Chief Justice has made it clear that the order shall not come in the way of the Court in disposing of the appeal arising out of the order passed under Section 9 of the Act. From the above said order it is thus clear that now the dispute between the parties concerned is in the hands of the sole Arbitrator and therefore the scope in so far as this civil miscellaneous appeal is concerned is very limited. Under this situation, the facts which are warranted to file the petition under Section 9 of the Arbitration and Conciliation Act, 1996 by the respondent/petitioner need not be reiterated. ( 11. ) THAT on 29.11.2006, two agreements of sale were entered into between the appellant/respondent and respondent/petitioner. The sale consideration has been determined in the first sale agreement dated 29.11.2006 at Rs.19,79,280/- of which a sum of Rs.1 lakh was paid towards advance. The balance of sale consideration viz., 18,79,280/- had to be paid on or before 20.02.2007. Similarly in the second sale agreement dated 20.11.2006, the sale consideration has been determined at Rs.38,36,770/- of which a sum of Rs.1 lakh was paid towards the advance and the remaining balance had to be paid on or before 28.02.2007. The case of the appellant/respondent is that the possession of the property was not handed over to the respondent/petitioner and that as stipulated in Clause 7 of the agreement of sale the appellant/respondent being the vendor had agreed to hand over physical possession of the scheduled mentioned property on receipt of the sale consideration and on registration of the sale deed as per the terms contained in the sale agreements. ( 12. ) MR. ( 12. ) MR. T.V.Sivakumar, the learned counsel for the appellant has argued that since the remaining balance of the sale consideration was not paid within the stipulated date and the respondent/petitioner was also not ready and willing to perform his part of the contract, the sale deed was not able to be registered and that the possession of the property was also not handed over to the respondent/appellant. While advancing his arguments, the learned counsel for the appellant has also drawn this Courts attention to paragraph 12 of the affidavit of the respondent/petitioner filed in support of the petition in which the respondent/petitioner has specifically admitted that though under separate agreement possession of the property was agreed to be handed over to the respondent/petitioner, till date the appellant/respondent had not surrendered the possession of the land in question. The candid admission of the respondent/petitioner shows that the property was not physically handed over to the respondent/petitioner. However the learned counsel appearing for the appellant/respondent has conceded while advancing his arguments that since the respondent/petitioner was keeping quite for a long period without any reason what so ever, the agreement of sale was terminated as early as on 30.06.2007. The respondent/petitioner had not bothered to challenge the termination notice dated 30.06.2007, instead he reconciled himself and accepted the termination notice. Therefore, there is no impediment for the appellant/respondent to sell the land to third parties. Accordingly, the appellant/respondent had sold 278 acres of land in Rasingapuram Village on 29.12.2009 to M/s. A.S.Farmlands Pvt Ltd., through the Directors Ajay Chopra and Sarabjeet Singh. The learned counsel has also submitted that following the sale the possession in respect of 278 acres was also handed over to the purchasers on 02.02.2010 after proper survey of the land by concerned surveyor. ( 13. ) ON the other hand the learned counsel for the petitioner would submit that the conduct of the appellant/respondent would go to establish that he had sold a sizeable part of the property to M/s. A.S.Farmlands Pvt Ltd., through the Directors Ajay Chopra and Sarabjeet Singh and the possession was also handed over to them. Hence, it has become necessary for the respondent/petitioner to approach the Principal District Court. Theni with a petition under Section 9 of the Arbitration and Conciliation Act 1996. Hence, it has become necessary for the respondent/petitioner to approach the Principal District Court. Theni with a petition under Section 9 of the Arbitration and Conciliation Act 1996. By way of an interim measure of protection and preservation of the property, after invoking the ordinary original civil jurisdiction of the High Court, the respondent/petitioner had filed a petition in O.P.No.502 of 2010 to appoint a fit person as a sole arbitrator to adjudge the dispute between the respondent/petitioner and the appellant/respondent pursuant to the Clause 9 of the sale agreement dated 21.11.2006. Accordingly, the Hon?ble Mr. Justice M.V.Balasubramanian a retired Judge, High Court, Madras was appointed as the sole arbitrator to adjudge the dispute between the parties concerned. ( 14. ) IT is pertinent to note here that as per the contention of the appellant/respondent the agreement of sale dated 29.11.2006 was terminated by a termination notice dated 30.06.2007. Clause 9 of the agreement of sale stipulates as under; "Any dispute arising between the parties herein with regard to the terms and conditions of this agreement or the meaning and interpretation of various clauses of this agreement shall be resolved by the sole arbitrator Mr.G.Sundaram, Advocate and the decision of the said arbitrator shall be final and binding on both the parties. Since there was an objection to appoint Mr.G.Sundaram as the sole arbitrator, now on the petitioner preferred by the respondent/petitioner, the Hon?ble Chief Justice, was pleased to appoint. Hon?ble Mr. Justice M.V. Balasubramanian a retired Judge, as the sole arbitrator." In support of his argument the learned counsel for the petitioner has placed reliance upon the decision in N. Srinivasa vs. Kuttularan Machine Tools Ltd, reported in (2009) 5 SCC 182 = 2009-5-L.W.280. In this case a Division Bench of the Supreme Court of India has held that; "It is well settled that even if an agreement ceases to exist, the arbitration clause remains in force and any dispute pertaining to the agreement ought to be resolved according to the conditions mentioned in the arbitration clause." ( 15. ) IT is also observed that; "one of the main issues for the purpose of deciding the application for injunction was whether time was of the essence of the contract or not. In a contract for sale of immovable property, normally it is presumed that time is not the essence of the contract. ) IT is also observed that; "one of the main issues for the purpose of deciding the application for injunction was whether time was of the essence of the contract or not. In a contract for sale of immovable property, normally it is presumed that time is not the essence of the contract. Even if there is an express stipulation to that effect, the said presumption can be rebutted. IT is well settled that to find out whether time was the essence of the contract, it is better to refer to the terms and conditions of the contract itself, by the impugned order, the High Court had failed to appreciate that in the contract relating to immovable property, time cannot be of the essence of the contract. In any even in such a case the arbitration clause would survive and the dispute would be required to be resolved. That being the position, pending disposal of the arbitration proceeding, interim measures to safeguard the interest were required to be taken." ( 16. ) THIS Court has carefully perused the documents marked on behalf of both the sides at the time of hearing of the arbitration application. THIS Court has also carefully gone through the order of the Learned Principal District Judge. Theni and on hearing both sides and on evaluating the documents produced on behalf of both sides, the Learned Principal District Judge. Theni has proceeded to pass an order of status quo till the completion of the arbitral proceedings. Having regard to the submissions made on behalf of both sides and on considering the order of the Learned Principal District Judge, Theni, this Court is of the considered view that the impugned order dated 02.08.2010, does not require any interference. In the result the civil miscellaneous appeal is dismissed. The order dated 02.08.2010, and made in Arb.O.P.No.1 of 2010 on the file of the Learned Principal District Court, Theni is confirmed. No order as to costs. Consequently, the connected miscellaneous petition is closed.