ORDER : G.S. Patel, J. 1. Heard through video conferencing. 2. This order will dispose of Commercial Arbitration Petition No. 399 of 2020 and Commercial Arbitration Petition (L) No. 106 of 2020. I will also make an order disposing of a third-party Interim Application No. 2377 of 2020 fled by Havmor Ice Creams Pvt. Ltd. 3. The 1st Respondent is a private limited company that is now facing proceedings under the Insolvency and Bankruptcy Code. Consequently, Mr. Cama presses his relief today only against Respondent Nos. 2 and 3, individuals who are not only directors of Respondent No. 1 but are also sued in their capacity as guarantors for the repayment of a debt to which I will presently refer. 4. The Petition under Section 9 seeks an order of deposit against Respondents Nos. 2 and 3 ("the Hakanis") in the amount of Rs. 7,40,03,160/- said to be due as on 30th January 2020 and further interest thereon. 5. The Petitioner is a non-banking finance company. The 1st Respondent was in the business of milk food products. 6. On 24th December 2018, the 1st Respondent's board resolved to seek credit facilities in the amount of Rs. 7.25 crores as an equipment finance facility from the Petitioner. Respondents Nos. 2 and 3 were specifically authorized to execute all necessary documents. The Respondents did apply for a loan in this amount. The Petitioner sanctioned the loan on 22nd January 2019 in the amount of Rs. 7.24 crores. The Respondents accepted the sanction letter. The loan was repayable in 60 months with a floating rate of interest at the rate of 12% per annum to be paid monthly from the date of first disbursement until maturity. The principal itself was repayable after an initial six-month moratorium in equated monthly installments. 7. The loan and interest were secured to the Petitioner by a hypothecation of the 1st Respondent's machinery and equipment, all purchased from this borrowing. Additional collateral security took the form of an exclusive charge on an escrow of receivables from Havmor Ice Creams Pvt. Ltd. 8. The Respondents executed a loan-cum-hypothecation guarantee agreement of 4th February 2019. While the 1st Respondent was a borrower, Respondents Nos. 2 and 3 themselves signed this document as the guarantors. They personally guaranteed repayment and discharge of the principal debt with interest and additional interest. A copy of this document is annexed. The Respondents executed a loan-cum-hypothecation guarantee agreement of 4th February 2019. While the 1st Respondent was a borrower, Respondents Nos. 2 and 3 themselves signed this document as the guarantors. They personally guaranteed repayment and discharge of the principal debt with interest and additional interest. A copy of this document is annexed. It contains an arbitration clause 23, which provides for a reference to arbitration under the Arbitration and Conciliation Act 1996. The place of arbitration is to be the place mentioned in serial No. 10 of Annexure-I and there can be no dispute that the place is Mumbai. Clause 24 says that the jurisdiction is to be at the place mentioned in serial No. 11 of Annexure-I. That Annexure mentions Mumbai, Delhi, Kolkata and Chennai but in both clauses 10 and 11, it is Mumbai that is tick marked, indicating that this is the place of contractual choice by the contracting parties. 9. There were additional documents such as a demand promissory note and a letter of undertaking but I am not immediately concerned with those. At that time, Respondent No. 2 showed a certificate of 22nd January 2019 showing net worth of over Rs. 3.64 crores. The certified net worth of Respondent No. 3 was said to be Rs. 2.69 crores. 10. Annexed to the plaint are documents showing the request made by the Respondents for disbursement. The petition says that the Petitioner disbursed an amount of Rs. 7,18,25,254/-. A list of hypothecated machinery is at Exhibit 'X' to the petition. The charge in favour of the Petitioners is duly registered with the Registrar of Companies. 11. By its letter of 1st November 2019, the Petitioner demanded payment of an amount of Rs. 13,39,183/- due as on 31st October 2019, in addition to other charges. There was no reply. There was no compliance. This went on. The Petitioners repeatedly wrote to the Respondents demanding repayment in terms of the agreement, but to no avail. All attempts at follow up were fruitless. 12. According to the Petition, as of 30th January 2020, an amount of Rs. 7,40,03,160/- was due and payable. The Petitioner issued an Advocate's notice on 13th January 2020 demanding payment of an amount of Rs. 7,26,41,469/- and in that very notice, in default, invoked arbitration. 13. It is on this basis that Mr. Cama first came to Court in February 2020. 7,40,03,160/- was due and payable. The Petitioner issued an Advocate's notice on 13th January 2020 demanding payment of an amount of Rs. 7,26,41,469/- and in that very notice, in default, invoked arbitration. 13. It is on this basis that Mr. Cama first came to Court in February 2020. I made an initial order of 13th February 2020 on the Petitioner's application. It seems that the Petitioner was not the only unpaid party. There was a claim by the State Government through one of its revenue departments and the Tehsildar in Tulzapur was threatening immediate action including an auction of the land and building and possibly the plant and machinery. This led to an order dated 7th September 2020. 14. It then transpired that the Petitioner and the State Government were in fact, not the only two unpaid creditors: Canara Bank had in the meantime moved the Aurangabad Bench of this Court, apparently also against the Tehsildar, claiming that it too had a secured debt that had remained unpaid. In the midst of all this, there arrived on the scene Mr. Soni representing Havmor Ice Cream Pvt. Ltd. and he, in turn, claims that his client had security over this very plant and machinery. Havmor has initiated Section 9 proceedings in the District Court in Ahmedabad. I permitted Havmor to intervene here, and Mr. Soni fairly agreed that he would not pursue his Section 9 Application before the District Court pending this order. In parallel, Mr. Cama made an intervention application in the Canara Bank Writ Petition before the Aurangabad Bench. That is also pending. 15. As I noted at the beginning, in the meantime, the 1st Respondent is now facing liquidation proceedings. 16. What is more interesting is the result of the disclosure affidavits filed by Respondents Nos. 2 and 3. As I noted, at the time when they took the loan - and that was not very long ago, only as recently as January 2019 -they showed a net worth of Rs. 3.64 crores and Rs. 2.69 crores respectively. The affidavits of disclosure now paint a very different picture. All assets are encumbered. There are nil income tax returns. The bank statements show paltry amounts of Rs. 40,000/- or Rs. 50,000/- and not more. This prompts Mr. Cama to ask how Respondents Nos. 2 and 3 are even able to put food on their table. 2.69 crores respectively. The affidavits of disclosure now paint a very different picture. All assets are encumbered. There are nil income tax returns. The bank statements show paltry amounts of Rs. 40,000/- or Rs. 50,000/- and not more. This prompts Mr. Cama to ask how Respondents Nos. 2 and 3 are even able to put food on their table. The answer to that lies elsewhere. 17. There is no reason an order of deposit should to be made against Respondents Nos. 2 and 3. That there is a debt owed is clear. That there is a legally binding contractual obligation to service that debt is a matter of a written contract that contains the arbitration clause. 18. Certainly, there must be an order of deposit. Given this alarming state of affairs where, within a span of less than 24 months, the net worth of Respondents Nos. 2 and 3 is claimed to have vanished altogether, some security must be ordered for the Petitioner's claim. The over-arching consideration is that both Respondents Nos. 2 and 3 are guarantors. The law on such guarantees is well-settled. A creditor can proceed independently against the guarantors. The liability of the guarantors is co-terminus with the liability of the principle debtor. The liability is joint and several and there is no question of the guarantors being excused from the performance of their obligation to repay the entire debt merely because the 1st Respondent is facing an insolvency proceedings. Indeed, that aspect of the law has now been amply cleared and requires no reiteration. 19. There is sufficiently strong prima facie case made out. Consequently, there will have to be an order in terms of prayer clause (a), requiring Respondents Nos. 2 and 3 to deposit an amount of Rs. 7.40 crores (rounded of) with the Prothonotary and Senior Master of this Court. That deposit is to be made by 15th February 2021. 20. On deposit, the Prothonotary and Senior Master will invest the amount for a period of one year and then renew that deposit until further orders of the Court. 21. Should the Petitioners receive an Award in arbitration, this amount will be transferred to the credit of any enforcement or execution proceeding that the Petitioners may file. 22. Optionally, it will be open to Respondents Nos. 21. Should the Petitioners receive an Award in arbitration, this amount will be transferred to the credit of any enforcement or execution proceeding that the Petitioners may file. 22. Optionally, it will be open to Respondents Nos. 2 and 3 to furnish an unconditional bank guarantee to the satisfaction of the Prothonotary and Senior Master in the entire amount of Rs. 7.40 crores with an undertaking that this is to be kept alive until further orders of the Court. This means that the bank guarantee must be renewed at least three weeks' before its scheduled expiry, so that it is continuously extended until otherwise ordered. 23. If a cash deposit is made, it is open to the Petitioners to withdraw the whole or any part of that amount but on furnishing an unconditional irrevocable bank guarantee for the amount withdrawn and all accumulated interest. 24. As to the Section 11 Application, it could be disposed of by referring all disputes and differences between the parties to the sole arbitration of Mr. JP Avasia, learned Advocate of this Court. 25. Havmor Ice Cream Pvt. Ltd's Interim Application No. 2377 of 2020, is dispose of as infructuous while recalling the previous order and setting Mr. Soni at liberty to pursue his clients' claim on merits before a court of competent jurisdiction in Ahmadabad. Mr. Soni states that he will give notice of any application he makes against the plant and machinery to the Advocates for the Petitioners. The statement is noted and accepted. 26. This order will continue unless otherwise ordered by the learned sole Arbitrator or by the Court. Unless otherwise ordered by the learned sole Arbitrator or the Court, the order of symbolic Receivership will also continue to operate. 27. Interim Application (L) No. 2881 of 2020 filed by the Petitioner against the Tehsildar is also disposed of as infructuous in view of the Petitioner's application for intervention before the Aurangabad Bench. 28. Mr. Mahadik will file his vakalatnama for Respondents Nos. 1 and 2 within one week from today. TERMS OF APPOINTMENT (a) Appointment of Arbitrator: Mr. JP Avasia, learned Advocate of this Court, is hereby nominated to act as a Sole Arbitrator to decide the disputes and differences between the parties under the Loan-cum- Hypothecation Guarantee Agreement of 4th February 2019. Mr. Mahadik will file his vakalatnama for Respondents Nos. 1 and 2 within one week from today. TERMS OF APPOINTMENT (a) Appointment of Arbitrator: Mr. JP Avasia, learned Advocate of this Court, is hereby nominated to act as a Sole Arbitrator to decide the disputes and differences between the parties under the Loan-cum- Hypothecation Guarantee Agreement of 4th February 2019. (b) Communication to Arbitrator of this order: (i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the Applicant within one week from the date this order is uploaded. (ii) The Advocates for the Applicant will forward an ordinary copy of this order to the learned Sole Arbitrator at the following postal and email addresses: Arbitrator Mr. JP Avasia, Advocate Address 44-A, Prospect Chambers Annexe, 6 Pitha Street, Forrt, Mumabi – 400001 Mobile 9820095447 Email avasiachambers@gmail.com (c) Disclosure: The learned Sole Arbitrator is requested to forward, in hard copy or soft copy (or both), the necessary statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to Advocates for the parties as soon as possible. The Advocates for the Petitioners will arrange to file the original statement in the Registry. If the statement is forwarded in soft copy, a print out of the covering email is also to be filed in the registry. (d) Appearance before the Arbitrator: Parties will appear before the learned Sole Arbitrator on such date and at such place as the learned Sole Arbitrator nominates to obtain appropriate directions in regard to fixing a schedule for completing pleadings, etc. (e) Contact/communication information of the parties: Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator. The information is to include functional email addresses and mobile numbers. (f) Section 16 application: The respondent is at liberty to raise all questions of jurisdiction within the meaning of section 16 of the Arbitration Act. All contentions are left open. (g) Interim Application/s: (i) Liberty to the parties to make an interim application or interim applications including (but not limited to) interim applications under Section 17 of the Arbitration and Conciliation Act, 1996 before the learned Sole Arbitrator. Any such application will be decided in such manner and within such time as the learned Sole Arbitrator deems fit. (g) Interim Application/s: (i) Liberty to the parties to make an interim application or interim applications including (but not limited to) interim applications under Section 17 of the Arbitration and Conciliation Act, 1996 before the learned Sole Arbitrator. Any such application will be decided in such manner and within such time as the learned Sole Arbitrator deems fit. (ii) The present Petition under Section 9 of the Arbitration Act will be treated, heard, and disposed of as an application under Section 17 of the Act for any remaining relief. All affidavits filed in the Section 9 petition will be treated as affidavits filed in the Section 17 application. Liberty to apply to the learned Sole Arbitrator for leave to file further affidavits. (iii) The learned Sole Arbitrator is requested to dispose of all interim applications at the earliest. (h) Fees: The arbitral tribunal's fees shall be governed by the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018. (i) Sharing of costs and fees: Parties agree that all arbitral costs and the fees of the arbitrator will be borne by the two sides in equal shares in the first instance. (j) Consent to an extension if thought necessary. Parties immediately consent to a further extension of up to six months to complete the arbitration should the learned Sole Arbitrator find it necessary. (k) Venue and seat of arbitration: Parties agree that the venue and seat of the arbitration will be in Mumbai. (l) Procedure: These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration. 29. The Arbitration Petition, the Arbitration Application and the two Interim Applications are all disposed of in these terms. No costs. 30. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.