JUDGMENT Ms. Jaishree Thakur, J. (Oral):- Affidavit has been has been filed by the learned counsel for the respondent today in the Court in compliance to the order dated 28.02.2019 and the same is taken on record. This is an appeal that has been filed seeking to challenge the impugned order dated 19.01.2019 passed by the learned Additional District Judge, Karnal dismissing the application under Section 9 of the Arbitration and Conciliation Act, 1996. There was an agreement between the appellant herein and the respondent-Corporation to mill 190764 bags of paddy weighing 71536.50 qtls. which was delivered to the appellant, out of which appellant herein had to deliver 47929.455 qtls. of “A” grade Custom Mill rice to the Food Corporation of India on behalf of the respondent- Corporation. 2. It is the contention of the respondent-Corporation that physical verification of the paddy/rice lying in premises of the appellant was conducted on 29.12.2018 by the designated team and it was found that out of total 47929.455 qtls. of Custom rice which was to be delivered to the Food Corporation of India only 37199.590 qtls of Custom Milled Rice was delivered to Food Corporation of India till 31.08.2018 and there was a shortage and misappropriation of the balance paddy/rice. On account of the misappropriation and to secure the interest of the respondent-Corporation, respondent-Corporation issued a notice dated 1.1.2019 to the appellant herein to pay the cost of 10729.865 qtls CMR (Custom Milled Rice) of grade “A” at 110% of the rate fixed by the Government of India alongwith interest @ 12% per annum within 10 days of issue of the said notice. 3. In the notice, it was further stated that in case the appellant failed to deposit the cost as demanded within 10 days, the respondent- Corporation will have no other option except to auction the entire quantity of paddy/rice, broken rice, dis-coloured rice and damaged rice at the risk and cost of the appellant on 21.01.2019. 4. The appellant herein sought the stay of the said order which was declined by the Additional District Judge, Karnal vide impugned order dated 19.01.2019 on the ground that the appellant had not disclosed any plan as to in which manner he would compensate the respondent or in which manner he would supply the remaining 10729.865 qtls. 4. The appellant herein sought the stay of the said order which was declined by the Additional District Judge, Karnal vide impugned order dated 19.01.2019 on the ground that the appellant had not disclosed any plan as to in which manner he would compensate the respondent or in which manner he would supply the remaining 10729.865 qtls. CMR of “A” grade paddy/rice to Food Corporation of India within a stipulated period and, therefore, in case the respondent-Corporation auctions the remaining stock lying in the premises, the petitioner would suffer no irreparable loss rather the amount so accrued from sale would be adjusted against the liability at the time of final settlement. 5. Aggrieved against the said order, the appellant approached this Court by way of filing the instant first appeal. It was initially argued that the appellant herein had taken the premises of M/s.R.P.Basmati Rice Limited for the purpose of milling the paddy/rice. While the paddy/rice was lying in the said premises, State Bank of India had taken over the possession of the premises of M/s.R.P.Basmati Rice Limited in proceedings that had been initiated under the SARFAESI Act, 2002 and consequently, the appellant herein was not allowed to mill the paddy/rice lying in those premises. It is argued that even a letter had been addressed by the respondent- Corporation to the bank to release the said paddy/rice. While submitting that the appellant could be put to great loss in case the respondent-Corporation is allowed to auction the paddy/rice. 6. Appearance has been caused on behalf of the respondent- Corporation who contends that this is a case of fraud played upon the respondent-Corporation, as the appellant and the respondent-Corporation were in joint custody of the rice/paddy which was lying deposited in the premises of M/s.Paras Food Limited, the appellant herein. It is argued that without the consent of the respondent – Corporation, the rice could not have been transferred to any other premises. This is objected to by the counsel for the appellant who submits that the respondent-Corporation itself stacked the rice/paddy in three different premises and the rice/paddy was released accordingly on release order. 7. It is argued that without the consent of the respondent – Corporation, the rice could not have been transferred to any other premises. This is objected to by the counsel for the appellant who submits that the respondent-Corporation itself stacked the rice/paddy in three different premises and the rice/paddy was released accordingly on release order. 7. During the proceedings in this Court a statement had been made by the Counsel for the appellant that he could be burdened for making delivery of rice/paddy in terms of the agreement @ 12 % and as on date he is still ready and willing to comply with the delivery of the entire rice/ paddy lying with him to Food Corporation of India. In pursuance to the offer so made, this Court sought information as to whether Food Corporation of India would still be ready and willing to accept the rice/paddy after the delayed period, which has been answered to in the negative. 8. It is also argued that there is no misappropriation or shortage of rice and in fact the physical verification of the rice/paddy was done by the respondent-Corporation by not taking into account the rice/paddy which was lying in the premises of M/s.R.P.Basmati Rice Limited. It was argued that if the rice lying in the seized premises of M/s.R.P.Basmati Rice Limited was taken into account alongwith the rice/paddy lying within the premises of M/s.Paras Food Limited there would be no shortage. 9. To counter this argument, an affidavit has been filed in which a categoric stand has been taken that the physical verification of the rice/paddy was done of the premises which was lying in M/s.Paras Food Limited situated at VPO Daha, G.T. Road, Karnal. As there was no order of permission given to transfer the rice to M/s.R.P.Basmati Rice, Limited, Karnal, there was no need to have any physical verification of the rice/paddy lying in those premises. It is argued that pursuant to the notice of NIT there are people ready and willing to lift the paddy and have already deposited the earnest money and, therefore, the stay ought to be vacated. 10. It is argued that pursuant to the notice of NIT there are people ready and willing to lift the paddy and have already deposited the earnest money and, therefore, the stay ought to be vacated. 10. I have heard counsel for the parties, only question that need to be answered in these proceedings is whether there should be a stay on the auction of the paddy that is lying in the premises of M/s.Paras Food Limited, Daha to make an effort to recover any outstanding/ damages that the respondent- Corporation might have suffered on account of shortage of supply of Custom Milled Rice. 11. Before answering this question, this Court is informed that M/s.Paras Food Limited has already instituted an application under Section 11 of the Arbitration and Conciliation Act for the appointment of an Arbitrator to go into this question whether there is any shortage of rice and the matter is pending consideration for appointment of Arbitrator for 17.05.2019. Counsel appearing on behalf of the respondent-Corporation does not dispute this fact, but submits that the respondent-Corporation is proposing to contest the said petition on the ground that cases of theft/ misappropriation would not attract the appointment of an Arbitrator under the agreement entered into between the parties. 12. While further submitting that in a similar matter i.e. Arbitration Case No. 130 of 2017, M/s.Shivam Trading Company Vs. State of Haryana and others an arbitrator has already been appointment, despite the fact that similar objections have been taken by the respondent-Corporation where similar allegations regarding fraud, theft and misappropriation etc. have already been taken. 13. I have heard counsel for the parties and I am of the opinion that the respondent-Corporation can not be allowed to suffer on account of any shortage of paddy/rice. 14. Admittedly, the appellant herein has not disputed the fact that he has not supplied the entire Custom Milled rice as per the agreement to Food Corporation of India. Since he has already invoked the jurisdiction of High Court for appointment of the Arbitrator, all these points can be taken up before him. 14. Admittedly, the appellant herein has not disputed the fact that he has not supplied the entire Custom Milled rice as per the agreement to Food Corporation of India. Since he has already invoked the jurisdiction of High Court for appointment of the Arbitrator, all these points can be taken up before him. Therefore, keeping in mind the Food Corporation of India who was to receive the Custom Milled Rice has declined to accept the same beyond the agreed date, it would be expedient to allow respondent- Corporation to put the same to auction to secure its interest lest there is further deterioration of paddy and to put it to auction in terms of the notice that has already been issued. Consequently, the stay is hereby vacated and the appeal is being disposed of allowing the appellant herein to raise all pleas/objections including the price of the paddy/rice fixed in the auction before the Arbitrator, in case one is appointed. In pursuant, stay stands vacated and the respondent- Corporation is permitted to carry on with the auction in terms of the notice issued on 1.1.2019. Petition stand disposed of.