JUDGMENT 1. The appellant being aggrieved by the judgment and order dated 29th March, 2012 passed by the learned Trial Judge on their application under section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as said 'Act') has preferred the instant appeal. The learned Trial Judge has refused to pass any effective ad interim order, though prayed for and had given direction simply for filing affidavits to hear it out finally some times in the month of May, 2012. The short fact leading to filing of the application as aforesaid and preferring instant appeal is as follows:- 2. By an agreement in writing dated 10th April, 2012 appellant agreed essentially to acquire mining leasehold interest granted to the respondent company and the respondent firm, by Rajasthan State Government by acquiring entire issued share capital of the respondent company as well as the shares of the respondent Nos. 2 and 3 in the respondent firm together with right of management and control of the company and the firm. It was agreed that purchase consideration for the shares of the respondent company would be at Rs. 20,50,00,000/-, and that of for the shares of the respondent Nos. 2 and 3 at Rs. 20,50,00,000/- too. The purchase consideration for the lands was determined at Rs. 41 crores. They are agreed to be paid by the appellant. There were various other conditions contained in the said agreement. According to the appellant the said agreement was induced to be entered into by the appellant with the respondents on the representation of the later that the deposit of limestone would be around 200 million metric tones and the said mining lease as well as the ownership of the lands were sought to be acquired for the purpose of setting up of plant for manufacturing high quality of cement. Accordingly, the appellant in terms of the said agreement had paid an aggregate sum of Rs. 29.48 crores as an advance and/or part-payment of the deal to the respondent. After having paid, in terms of the agreement the appellant caused a Geological Survey to be made to ascertain the quantity of deposit of lime stone which was supposed to be mined by the appellant for manufacturing cement. On independent survey having been done it was found that projection of deposit of Rs. After having paid, in terms of the agreement the appellant caused a Geological Survey to be made to ascertain the quantity of deposit of lime stone which was supposed to be mined by the appellant for manufacturing cement. On independent survey having been done it was found that projection of deposit of Rs. 200 million metric tones as represented by the respondents was not correct, and the deposit was much less. In view of the aforesaid situation according to the appellant the agreement turns out to be non-executable. Accordingly, the appellant in terms of the agreement terminated the said contract and asked for refund of the aforesaid advance amount paid. In substance the agreement has now become frustrated and had to be terminated. 3. In spite of repeated demands aforesaid amount has not been repaid. The said agreement contains valid and enforceable arbitration clause, and in contemplation of the arbitration proceedings being initiated the aforesaid interlocutory action taken. The case made out before the learned Trial Judge to obtain interim relief was that all the respondents do not have sufficient assets and properties to pay back aforesaid principal amount with interest. It was also the case that the respondents in order to defeat the aforesaid undisputed claim of the petitioner are trying to transfer and alienate leasehold interest as well as the land to third party. The value of the shares which have been lying with the Escrow Agent is not adequate to secure the claim. Moreover, it is apprehended that the respondent company is trying to issue duplicate share to third party. On the aforesaid background following prayers have been made: (a) An order of injunction be made restraining the respondents from transferring the mining leases granted to the respondent Nos. 4 and 5, whether by transferring shares of the respondent No. 4 company or by transferring the shares of the respondent Nos. 2 and 3 in the respondent No. 5 or otherwise; (b) An order of injunction be made restraining the respondents from taking any steps to issue duplicate shares scripts to the holders whose shares were to come to the petitioner had the transaction been completed; (c) An order be made appointing a Receiver over the mining leases of the respondent Nos. 4 and 5 with a direction to sell the same at the best available price, to collect the proceeds of such sale and to pay the same to the petitioner in pro tanto satisfaction of its claim; (d) An order be made directing the Receiver that may be appointed herein to take possession of the shares of the respondent No. 4 and their transfer deeds that have been deposited in escrow with the escrow agent Arvind Kumar Jhunjhunwala of 1B, Old Post Office Street, Kolkata and to keep the same in his custody subject to such order that may be passed by this Hon'ble Court in connection therewith; (e) An order be made directing the respondents to show cause as to why they should not be directed to furnish security for the sum of Rs. 37,77,14,871/-; (f) In the event of the respondents failing to show cause or showing insufficient cause, to cause the assets and properties of the respondents including all monies lying in their bank accounts and the lands of the respondent Nos. 2 and 3 detailed in the annexure "M" hereto to be attached before judgment; (g) An order of injunction be made restraining the respondents from dealing with, disposing of, alienating, encumbering or otherwise transferring their assets and properties including the lands belonging to the respondent Nos. 2 and 3 detailed in the annexure "M" hereto or from withdrawing any amounts from their bank accounts without leaving in balance a sum of Rs. 37,77,14,871/- in the same; (h) An ad interim order be made in terms of the above prayers; (i) Costs of this application be directed to be paid by the respondents; (j) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may seem fit and proper. 4. Mr. Kapur, learned senior counsel appearing for the appellant drawing our attention to the findings of the learned Trial Judge contends that after having concluded that there has been strongest possible prima facie case the learned Trial Judge should have granted interim relief. 4. Mr. Kapur, learned senior counsel appearing for the appellant drawing our attention to the findings of the learned Trial Judge contends that after having concluded that there has been strongest possible prima facie case the learned Trial Judge should have granted interim relief. There is no dispute nor there can be any dispute as regard termination of the agreement and also the right to claim refund of the money already paid in terms of the agreement, indeed it will appear from the correspondences exchanged that the respondents are willing to refund, however could not do so in view of lack of fund. Unless the new intending buyer comes forward to buy up as it was sought to be done by the respondent no fund can be generated, and consequently advanced amount taken cannot be refunded. In view of the aforesaid situation according to Mr. Kapur ad interim order should have been passed compelling the respondents to secure the claim. 5. Mr. Jayanta Kumar Mitra, learned Senior Advocate appearing for the respondent while responding to the case of the appellant contends that the scope of the appeal is very limited as the matter is still pending before learned Trial Judge for final hearing. Hence this Court will examine whether learned Trial Judge is justified to refuse to pass ad interim order or not? According to him going by the statement and averment made in the petition the appellant's claim is that of money simplicitor, and admittedly do not have any interest in the land. Therefore no order can be passed in relation to the land. He also submits that enough security has been lying with the Escrow Agent namely the shares or fully paid up shares not only of the Company but also the other shareholders. 6. He submits that having acted upon in terms of the agreement his client has already purchased several plots of land utilizing the said money. He submits that plea of inadequate deposit of limestone in the mine which is the basis of the termination of the agreement is not acceptable to his client even the termination itself is not acceptable, hence advance is not refundable. He submits that plea of inadequate deposit of limestone in the mine which is the basis of the termination of the agreement is not acceptable to his client even the termination itself is not acceptable, hence advance is not refundable. He says taking face value of the statement and averment of the petition before the learned Trial Judge and the accompanied document it would appear that no case has been made out far less strong case to get an order of security at the ad interim stage. 7. He contends that furnishing of security or any order having effect of attachment before judgment can be passed when strong case has been made out as provided in the Order 38 Rule 5 of the Code of Civil Procedure. To support this legal contention he has referred to a decision of this Court reported in AIR 1955 Cal 156 and also that of a Supreme Court reported in (2008) 2 SCC 302 . He concludes saying that on instruction his client is not going to make any attempt to issue duplicate shares and the original shares are lying at the hands of the Escrow Agent, hence the appellant's alleged claim is adequately secured. 8. We have heard the contention of the learned counsel for the parties. We think Mr. Mitra is right in contending that scope of the appeal is whether learned Trial Judge was justified in refusing to pass ad interim order on the case made out in the petition and with the supporting document. It is true that at this stage the Court is to go by the statement and averment made in the petition. We find force in the submission of Mr. Mitra no case has been made for furnishing security at the ad interim stage in the case of this nature. It is true as rightly contended by Mr. Kapur that learned Trial Judge has come to the findings prima facie that claim of the petitioner is near unimpeachable, but the claim is for money and we are of the view prima facie after having terminated the agreement the appellant cannot have any right, title, interest in the leasehold interest of the appellant which was sought to be purchased by his client and also the land in question. Therefore, order of injunction touching upon the land or mining lease cannot be granted at this stage. Therefore, order of injunction touching upon the land or mining lease cannot be granted at this stage. We accept the submission of Mr. Mitra that learned Trial Judge is justified not granting any ad interim order asking the respondent to furnish any security. The security in our view can be asked to be furnished in a strongest prima facie case where the respondents have no means at all to satisfy the claim which might be awarded in the arbitration proceedings. Here we notice in the statement and averment that the entire shareholding of the respondent company as well as the shares of the every respondents are lying with the independent person Escrow Agent, that apart personal guarantee has been furnished and the same is also being enforced. We are of the view that unless money is quantified by adjudication at this stage question of furnishing security as prayed for does not and cannot arise. 9. It is true that the principle and/or pre-condition for passing order of security under Order 38 Rule 5 may not be applicable in strict sense but the principle thereof can very well be applied. In the petition we do not find any such case having been made out that the respondents have any intention to defeat the claim of the appellant. The statement and averment made in the petition are absolutely bare statement and not supported by any document, rather we notice from the documents that the respondents have every intention to refund not to dodge. Under these circumstances when the intention of the respondent is not mala fide and security already furnished that may or may not be adequate, we do not think any order for furnishing security at this stage is required. Of course, this can be considered on receipt of the affidavits from both the parties at the time of final hearing of the application. Mr. Mitra has said that his client is not going to issue any duplicate shares of the respondent company. When this statement has been made we direct the respondents to honour the statement by not issuing any duplicate shares. Obviously the Escrow Agent shall hold the said shares lying with him. 10. Mr. Mitra has said that his client is not going to issue any duplicate shares of the respondent company. When this statement has been made we direct the respondents to honour the statement by not issuing any duplicate shares. Obviously the Escrow Agent shall hold the said shares lying with him. 10. As far as dealing with regard to the mining lease is concerned we think that same can be done with prior seven days' intimation giving detailed particulars of such deal to the Advocate-on-record of the appellant it would be open for the appellant to apply for suitable interim relief if so advised. We, accordingly, dispose of the appeal with the aforesaid order.