JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. B. Dutta, learned counsel for the appellant and Mr. G.N Sahewalla, learned senior counsel for the respondent. 2. The appellant and the respondent entered a Memorandum of Understanding (MoU) dated 22.02.2019, which provided that the respondent Maskara Tea Estate would be handed over to the appellant for a period from 01.01.2019 to 31.12.2019. Upon being handed over, the Tea Estate would be operated by the appellant and in lieu thereof certain amounts as stated in the MoU would be paid by the appellant to the respondent. In course of such arrangement between the parties, some dispute had arisen and in order to settle their dispute, the appellant preferred a petition under Section 9 of the Arbitration and Conciliation Act, 1996 before the learned District Judge, Sivasagar with the following prayers:- wxyz "(i) The respondent may be directed not to interfere or to create any disturbance or annoyance in the process of production of made tea and onward sell of the finished products as per the arrangement of the petitioner. zyxw wxyz (ii) The respondent may be restrained from interfering into the day to day business affairs of Maskara Tea Estate and its factory premises. zyxw wxyz (iii) The respondent may be directed not to create any disturbance or annoyance in the peaceful possession and occupation of the Maskara Tea Estate and its factory premises. zyxw wxyz (iv) Ad-interim orders in terms of the prayers made above." zyxw 3. The bone of contention was that the MoU required two complete sets of new Rotor Van, amongst others, to be provided by the respondent to the appellant, which apparently would be used by the appellant in course of their activities in the Tea Estate. The Section 9 petition of the appellant was given a consideration by the learned District Judge, Sivasagar by the judgment and order dated 19.08.2019, wherein certain prima-facie satisfaction was arrived at that the appellant had made certain defaults in making the payment and therefore was of the view that they had not come with clean hands and under the law of equity are not entitled to the relief claimed for in the Section 9 petition. 4. Being aggrieved, Arb.A.14/2019 was preferred by the appellant before this Court, which was given a final consideration by the judgment and order dated 25.09.2019. 4. Being aggrieved, Arb.A.14/2019 was preferred by the appellant before this Court, which was given a final consideration by the judgment and order dated 25.09.2019. By the said judgment and order dated 25.09.2019, the judgment and order of the learned District Judge, Sivasagar dated 19.08.2019 was interfered for the reasons that the core contention raised by the appellant as regards not providing two new Rotor Van was not taken into consideration while passing the said judgment. Accordingly, the matter was remanded back for a fresh consideration. On being remanded back, there was a change in circumstances that the appellant no longer was in the possession of the Tea Estate concerned. In the circumstance, a modified prayer was made in a petition in the Section 9 proceeding that there is an apprehension that the Tea Estate may be disposed of by the respondent and therefore, they be directed to furnish the bank guarantee/surety till the matter is finally adjudicated and resolved by the appropriate arbitral Tribunal. 5. Mr. B. Dutta, learned counsel for the appellant refers to the objection of the respondent to the petition containing the modified relief sought for and point outs that in respect to paragraph 9 wherein the modified prayer was made, the respondent had not raised any objection thereto. 6. Be that as it may, the Section 9 petition was given a fresh consideration by the learned District Judge, Sivasagar by its judgment and order dated 24.10.2019. In paragraph 5 of the said judgment of 24.10.2019, the earlier prayer made were extracted. Thereupon the learned District Judge proceeds to decide the question whether by not providing the two new Rotor Vans as stipulated in the MoU, whether any loss could have been caused to the appellant. Accordingly, a conclusion was arrived that because of the sanctioned electricity load etc, no loss could have been sustained. Thereupon the learned District Judge proceeds to decide the question whether by not providing the two new Rotor Vans as stipulated in the MoU, whether any loss could have been caused to the appellant. Accordingly, a conclusion was arrived that because of the sanctioned electricity load etc, no loss could have been sustained. But while considering the modified prayer made that the appellant seeks only for a bank guarantee or a surety against the disputed amount to be raised in the arbitration proceeding, the learned District Judge merely held as follows:- wxyz "This Court by using power u/s 9 of the Arbitration and Conciliation Act, finds no case for granting any interim monetary protection at this stage on the presumption that the petitioner will initiate the arbitration proceeding in future and now his financial interest is required to be protected by granting relief in the form of Bank guarantee/surety etc." zyxw 7. The said conclusion of the learned District Judge in our view is not maintainable and the modified prayer made in the Section 9 petition was merely rejected that there cannot be any presumption at that stage that the appellant would initiate the arbitration proceeding in future and therefore, his financial interest is required to be protected. 8. In order to appreciate the said conclusion of the learned District Judge, we look into the provisions of Section 9 of the Arbitration and Conciliation Act, 1996, which is as under:- wxyz "9. Interim measures, etc. 8. In order to appreciate the said conclusion of the learned District Judge, we look into the provisions of Section 9 of the Arbitration and Conciliation Act, 1996, which is as under:- wxyz "9. Interim measures, etc. by Court.- [1] A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court- zyxw wxyz (i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or zyxw wxyz (ii) for an interim measure of protection in respect of any of the following matters, namely:- zyxw wxyz (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; zyxw wxyz (b) securing the amount in dispute in the arbitration; zyxw wxyz (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorizing experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; zyxw wxyz (d) interim injunction or the appointment of a receiver; zyxw wxyz (e) such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. zyxw wxyz [(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.] zyxw wxyz [(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that the circumstances exist which may not render the remedy provided under section 17 efficacious.]" zyxw 9. Section 9 (1)(ii)(b) clearly provides that a party may before or during an arbitral proceeding or at any time after making of the arbitral award, but before it is enforced, apply to a Court, for an interim measure of protection in respect of, amongst others, securing the amount in dispute in the arbitration. The said provision clearly envisages a situation where an interim protection securing the amount in dispute in the arbitration may also be sought for before any arbitration proceeding had been initiated. In view of such express provision of Section 9 of the Arbitration and Conciliation Act, 1996, the conclusion of the learned District Judge that an interim monetary protection cannot be granted on the presumption that the party concerned will initiate an arbitration proceeding would be unsustainable. 10. Section 9(2) of the Arbitration and Conciliation Act, 1996 further provides that before the commencement of the arbitral proceeding, if a Court passes an order for any interim measure of protection under sub-section-1, 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. The said provision itself is an indication that at the stage when the Section 9(1) application is made for an interim protection, there would be no requirement for the Court to satisfy itself to a presumption that the party concerned will initiate the arbitration proceeding. Section 9(2) clearly provides that in the event any interim order is passed under Section 9 (1), it would be mandatory for the party taking the benefit of such interim order to take the necessary steps that the arbitration proceeding be commenced within a period of 90 days thereafter or within such further time as the Court may determine. As a corollary, in other words, Section 9(2) also provides for that in the event the arbitration proceeding is not commenced within the aforesaid period, the party against whom such interim order was obtained may proceed against such interim order as per law. 11. As a corollary, in other words, Section 9(2) also provides for that in the event the arbitration proceeding is not commenced within the aforesaid period, the party against whom such interim order was obtained may proceed against such interim order as per law. 11. For both the reasons stated above to the extent that the learned District Judge had already expressed its view on the possible claim of the appellant in the arbitration proceeding and also for the reasons for not giving a consideration to the modified interim prayer made, we accordingly set aside the judgment dated 24.10.2019 of the learned District Judge, Sivasagar in Misc (Arb) Case No.01/2019. 12. The matter now again remanded back to the learned District Judge, Sivasagar for an appropriate consideration on the modified prayer of seeking certain bank guarantee/surety by the appellant. It is requested that the learned District Judge would decide the matter independent of its earlier decision in the two judgments, which had already been set aside and also the observations made by this Court in the present judgment strictly on the basis of the merit of the claim of the modified interim prayer of the appellant. 13. For the purpose, the parties shall appear before the learned District Judge, Sivasagar on 03.03.2020 and upon their appearance, the Section 9 petition be decided within a period of two week''s thereafter. wxyz The Achintya Malla Bujor Baruato the extent indicated above. zyxw