JUDGMENT : 1. Heard Mr. A. Dhar, the learned counsel for the appellant. The name of the counsel for the respondent No. 1 is shown in the cause list and as per the records available except for once i.e. on 13.06.2013, the learned counsel Mr. S.U. Ahmed remained absent on various dates including today when the matter is taken up for disposal. 2. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as Act, 1996) against the order dated 17.04.2013 passed by the learned District Judge, Tinsukia in Misc.(Arb.) Case No.01/2013. The present respondent as the petitioner filed an application under Section 9 of the Act, 1996 against the present appellant as the respondent for the following relief:- "(a) Respondents or its agent and/or any persons claiming under or through it may be restrained from depriving the Petitioner without payment of its outstanding dues by deputing a third party and/or by employing the service of a third party without payment of its outstanding dues in respect of work of diesel filling of all 18 numbers of DG sites as detailed in schedule of the petition. (b) Respondent may be restrained from entering into contract with a third party without payment of outstanding dues in respect of work of diesel filling of all 18 numbers of DG sites as detailed in schedule of the petition. (c) An Ex parte ad-interim injunction order in terms of prayer of (a) & (b) above. (d) Such other orders as Your Honour may deem fit and proper to meet the ends to justice." 3. The said application was filed on 30.03.2013 subsequent thereto petition No.435/13 was filed in the said Court of District Judge at Tinsukia in Misc.(Arb.) Case No.01/2013 thereby seeking the subsequent petition to be a part of the earlier petition filed on 30.03.2013 on the basis of which Misc.(Arb.) Case No.01/2013 was registered. In the subsequent petition they sought for the following relief:- "i. Direct the respondent No.1 to furnish Bank Guarantee of Rs.22,84,479.16. ii. Such other order as Your Honour may deem fit an proper." 4. From the averments made in the said petition it is seen that the respondent was carrying on business of supply of various diesel generators or mobile phone towers of various places within Tinsukia district under the appellant for a limited period. ii. Such other order as Your Honour may deem fit an proper." 4. From the averments made in the said petition it is seen that the respondent was carrying on business of supply of various diesel generators or mobile phone towers of various places within Tinsukia district under the appellant for a limited period. It was further pleaded that the present appellant entrusted the respondent No.2 to look after various activities in respect of the mobile phone towers. There was a dispute alleged by the respondent No.1 in respect of bills in terms of the work of diesel filling and with an intention to refer the dispute as per the agreement entered into by the present respondent No.1 and the appellant, an application under Section 9 of the Act, 1996 was filed before the Court below seeking for the reliefs mentioned hereinabove. The said petition was registered as Misc. (Arb.) Case No.01/2013, the learned court below vide the impugned order dated 17.04.2013 disposed of by holding as follows:- "Considering all the facts and circumstances of the case, I am of the considered view that pending the settlement of the dispute by the Ld. Arbitrator, the amount as claimed by the petitioner as outstanding dues from Respondent No.1 can be secured by way of a bank guarantee. Accordingly, the Respondent No.1 is directed to furnish a bank guarantee for Rs.22,84,479.16. Issue Notice upon the Respondent No.1." 5. Being aggrieved by the said impugned order, this appeal is preferred by the appellant. Vide order dated 21.05.2013 the Hon’ble Division Bench of this Court was satisfied to issue notice of this appeal to the respondents with an interim relief to the appellant that the impugned order dated 17.04.2013 shall remain stayed until further order subject to furnishing to the Office of the Registrar General of this Court, a bank guarantee equivalent to a sum of Rs.22,84,479.16/- within a period of one week from 21.05.2013. While passing the said interim order there was an inadvertent error following which MC No.1407/2013 was filed and vide order dated 23.05.2013 the amount of Rs.22,84,479.16/- was corrected to Rs.2,40,381/-. After the said correction, the appellant deposited the said Bank Guarantee and as per the submission of Mr. Dhar the same was last renewed on 13.08.2018 keeping its validity till 17.08.2019. On a specific query Mr. After the said correction, the appellant deposited the said Bank Guarantee and as per the submission of Mr. Dhar the same was last renewed on 13.08.2018 keeping its validity till 17.08.2019. On a specific query Mr. Dhar replied that after the said order passed by the learned court below, the respondent failed to take any initiative in order to refer the dispute to arbitral tribunal nor the dispute was referred to the named forum for the arbitration i.e. Federation of Indian Chambers of Commerce and Industry (FICCI). 6. In my opinion, the said answer to the query of this Court is sufficient to dispose of this appeal keeping in view the provision under Section 9 Sub-Section 2 of the Act, 1996 where before the commencement of arbitral proceeding, the court passes an order for any interim measure for protection under Section 9 Sub-Section 1 of the Act, 1996, the arbitral proceeding shall be commenced within a period of 90 days from the date of such order or within such further time as the court may determine. 7. In the present case in hand, the learned court below invoking the jurisdiction under Section 9 in order to secure the amount in dispute directed the present appellant to furnish a Bank Guarantee amounting Rs.22,84,479.16/-. However as there is no commencement of arbitral proceedings, as on date the same has became in-fructuous moreso, as per Section 43 of the Act, 1996 the period for referring a dispute is already barred which is 3 years as per Article 113 of the Limitation Act, 1963. 8. Accordingly, I am satisfied to set aside the order dated 17.04.2013 passed in Misc. (Arb.) Case No.01/2013 by the learned District Judge, Tinsukia for the reasons observed hereinabove. 9. The appellant is hereby allowed to withdraw the Bank Guarantee deposited in the Office of the Registrar General, Gauhati High Court. 10. This appeal accordingly succeeds and disposed of.