ORDER : Petitioner No.1 is a Partnership Firm, having its partners, petitioners No.2 to 5 and one more partner namely Rajesh Prahlad Rakesh, who was not partner at the time of execution of agreement with respondent, a sole proprietorship concern of Mr. Purav Chitalia. 2. Present petition has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”), seeking following relief(s):- “A The account being maintained by the respondent with ICICI Bank Dharamshala be order to be attached bearing number 050005001145 under name of Nibbana. B. A receiver be appointed to maintain the affairs of the property and to secure the account’s so that the same may not be tampered with at any given point of time. C. Any other order which this honourable court may feel just an appropriate in the facts and circumstances of the case be also passed in favour of the conditioner.” 3. Petitioners-firm has a Resort in the name and style of M/s Anandini Village Resorts in two different parts known as Anandini Village Resorts-I, consisting of Hotel alongwith open space in the shape of lawn and parking and Anandini Village Resorts-II, having four different built up structures adjacent to main Hotel structures. 4. For running Hotel and the aforesaid Resorts, petitioners entered into an agreement dated 23.8.2016 with respondent, whereby a lease was created in favour of the respondent by the petitioners. The said agreement was replaced by the agreement dated 3.7.2017 and lastly registered Lease Deed dated 21.5.2019 was executed between the parties having Arbitration Clause qua resolution of disputes arising thereto between the parties. As per Lease Deed, respondent had agreed to pay lease amount of Rs.1,40,16,000/- per annum to the petitioners-firm and the respondent was permitted to pay lease amount time to time on behalf of the petitioner towards expenditure for completion of interior work of the Hotel as documented in the worksheet prepared by the parties. 5. Petitioners have raised loan for construction of aforesaid Resorts by creating charge on the part of the property by mortgaging the same with the Bank. 6. 5. Petitioners have raised loan for construction of aforesaid Resorts by creating charge on the part of the property by mortgaging the same with the Bank. 6. It was also agreed between the parties that in case respondent is unable to pay monthly rent amount, then petitioners-firm shall be comfortable to adjust the amount required to be paid by the petitioners under the worksheet against the monthly rent payable by the respondent and in case the petitioners-firm, due to unavoidable circumstances, defaults to pay any installment to the bank, it may request the respondent to directly pay the lease amount or any part thereof to the bank. 7. Possession of the Resorts was handed over to the respondent from 1.1.2019 and the Hotel started running in April, 2019. 8. A dispute arose between the parties alleging defaults, breach and various acts of omission and commission on the part of each other leading to issuing of legal notice(s) and reply(ies) thereto and ultimately respondent had issued a letter, nominating an Arbitrator for resolution of dispute with a request to petitioners to nominate second Arbitrator so as to enable the Arbitrators, so nominated, to commence the arbitration proceedings, after nominating third Arbitrator with consent. 9. Respondent had filed an application under Section 9 of the Act in the Court of learned District Judge, Kangra at Dharamshala, which was decided on 9.10.2020, restraining the petitioners from trespassing or causing any hindrance in the property in question, and also from interfering in peaceful possession of the respondent which was disputed by the petitioners and the respondent was also directed to pay the lease amount strictly in accordance with the Lease Agreement/ Memorandum of Understanding. The interim order was to remain in force for a period of 90 days from the date of order i.e. 9.10.2020. 10. For not nominating an Arbitrator by the petitioners, process of constitution of Arbitral Tribunal, as provided under the Lease Deed, could not be completed. However, petitioners preferred a petition under Section 11 of the Act before this Court on 9.12.2020, seeking appointment of an Arbitrator. The said application was registered as Arbitration Case No.78 of 2020. 11. On 3.3.2021, petitioners preferred present petition, seeking reliefs reproduced supra. 12. However, petitioners preferred a petition under Section 11 of the Act before this Court on 9.12.2020, seeking appointment of an Arbitrator. The said application was registered as Arbitration Case No.78 of 2020. 11. On 3.3.2021, petitioners preferred present petition, seeking reliefs reproduced supra. 12. Petitioners are claiming that respondent is liable to pay outstanding lease money, Rs.1,48,27,224/- w.e.f. 1.1.2019 to 31.12.2020 and also for future lease money @ 1,40,16,000/- per annum, whereas respondent is claiming that petitioners are liable to reimburse Rs.4,77,34,560/- spent for completion of construction work as well as interior finishing of the Resorts in terms of the worksheet as agreed in the Lease Deed. Though payment of Rs.1,50,00,000/- by the respondent to the petitioners is an admitted fact, however, petitioners-firm is claiming that amount of Rs.60,00,000/- was paid as security, whereas amount of Rs.90,00,000/- was claimed by respondent to be adjusted for expenditure of work carried on by the respondent, out of which Rs.36,00,000/- were adjusted for lease rent for the months of August, September, October of 2019. With respect to adjustment, out of Rs.90,00,000/-, petitioners are claiming that no details, bills etc were ever produced by the respondent to justify the expenditure of that amount. Similarly, for want of necessary documents and details of expenditures, petitioners are also disputing the expenditure of amount of Rs.4,77,34,560/-, as claimed by respondent. As a result of this dispute, respondent stopped making payment of lease rent and petitioners stopped repayment of the loan to the Bank, claiming such default for want of sufficient funds. 13. During pendency of the present case, property, the subject matter of the Lease Deed, was taken over by the bank through the Collector, on 25.10.2021 by invoking provisions of SERFASI Act. The said action of the Bank has been assailed by the respondent before Debt Recovery Tribunal (DRT), Chandigarh and vide order dated 29.12.2021, the bank has been directed by the DRT to unlock the property so as to enable the respondent to resume the work of Hotel business till the next date of hearing, but with a direction to the respondent to deposit the amount of lease i.e. Rs.11,68,000/-, on monthly basis with the Bank till final disposal of the application pending before DRT. 14. Arguments on behalf of petitioners in present case were concluded on 18.11.2021 and matter was adjourned for 24.11.2021 for arguments on behalf of respondent. 14. Arguments on behalf of petitioners in present case were concluded on 18.11.2021 and matter was adjourned for 24.11.2021 for arguments on behalf of respondent. On 24.11.2021, matter was adjourned for 16.12.2021 for absence of learned original counsel for the petitioner because of personal difficulty. On 16.12.2021, matter was adjourned on the request made on behalf of respondent enabling the out-stationed counsel Mr. Amit Saini either to appear or submit written submissions by the next date of hearing and matter was listed on 27.12.2021. On 27.12.2021, written arguments were placed on record on behalf of the respondent and no further arguments were proposed to be addressed on behalf of the parties and the matter was adjourned for further orders on 3.1.2022. On 3.1.2022, the matter was adjourned for 7.1.2022, i.e. today. 15. Today, learned counsel for the respondent has placed on record supplementary written submissions, raising two more points, first that in view of provisions of Commercial Courts Act, 2015, this Court has no jurisdiction to entertain this petition being not a Commercial Division, and second that today in a petition under Section 11 of the Act, i.e. Arbitration Case No.78 of 2020, Hon’ble the Chief Justice has constituted an Arbitral Tribunal, by appointing Presiding Arbitrator and, therefore, in view of provisions of Section 9 (3) of the Act, this Court has no jurisdiction to entertain this petition preferred under Section 9(1) of the Act, whereas learned counsel for the petitioners has submitted that Arbitral Tribunal shall come into existence only after entering into the reference by the Presiding Arbitrator and, therefore, this Court has jurisdiction to entertain the present petition. 16. Learned counsel for the petitioners-firm, in support of his contention, has referred judgments of Delhi High Court, in Ramanand v. Dr. Girish Soni (Delhi) 2020(1) R.C.R. (Rent) 468 and Bombay High Court, in Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited, Comm. Arbitration Appeal (L) No.1022 of 2021, whereas learned counsel for the respondent has relied upon judgment of Delhi High Court, in Solitaire Ventures Pvt. Ltd. v. Vipul SEZ Developers Pvt. Ltd., 2015 (6) R.A.J. 188. 17. Objection raised on behalf of the respondent, with respect to provisions of Commercial Courts Act, is not tenable, as this Court vide Notification No.HHC/Admn.10(155)/92-XVII, dated 31.5.2017, has been notified/designated as Commercial Division. 17. Objection raised on behalf of the respondent, with respect to provisions of Commercial Courts Act, is not tenable, as this Court vide Notification No.HHC/Admn.10(155)/92-XVII, dated 31.5.2017, has been notified/designated as Commercial Division. Thus, issue raised on behalf of respondent in present case that petition under Section 9 of the Act is maintainable only before Commercial Division, is not required to be adjudicated and decided on merit. 18. The question of law, raised on behalf of the respondent that as to whether after constitution of Arbitral Tribunal this Court has no jurisdiction to entertain an application under Section 9(1) of the Act, pending adjudication before this Court prior to constitution of Arbitral Tribunal, is no longer res integra in view of ratio of law laid down by the Hon’ble Supreme Court in, Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited, AIR 2021 SC 4350 , wherein it has been held as under :- “95. On a combined reading of Section 9 with Section 17 of the Arbitration Act, once an Arbitral Tribunal is constituted, the Court would not entertain and/or in other words take up for consideration and apply its mind to an application for interim measure, unless the remedy under Section 17 is inefficacious, even though the application may have been filed before the constitution of the Arbitral Tribunal. The bar of Section 9(3) would not operate, once an application has been entertained and taken up for consideration, as in the instant case, where hearing has been concluded and judgment has been reserved. Mr. Khambata may be right, that the process of consideration continues till the pronouncement of judgment. However, that would make no difference. The question is whether the process of consideration has commenced, and/or whether the Court has applied its mind to some extent before the constitution of the Arbitral Tribunal. If so, the application can be said to have been entertained before constitution of the Arbitral Tribunal. 96. Even after an Arbitral Tribunal is constituted, there may be myriads of reasons why the Arbitral Tribunal may not be an efficacious alternative to Section 9(1). This could even be by reason of temporary unavailability of any one of the Arbitrators of an Arbitral Tribunal by reason of illness, travel etc. 97. Applications for interim relief are inherently applications which are required to be disposed of urgently. This could even be by reason of temporary unavailability of any one of the Arbitrators of an Arbitral Tribunal by reason of illness, travel etc. 97. Applications for interim relief are inherently applications which are required to be disposed of urgently. Interim relief is granted in aid of final relief. The object is to ensure protection of the property being the subject matter of Arbitration and/or otherwise ensure that the arbitration proceedings do not become infructuous and the Arbitral Award does not become an award on paper, of no real value. 98. The principles for grant of interim relief are (i) good prima facie case, (ii) balance of convenience in favour of grant of interim relief and (iii) irreparable injury or loss to the applicant for interim relief. Unless applications for interim measures are decided expeditiously, irreparable injury or prejudice may be caused to the party seeking interim relief. 99. It could, therefore, never have been the legislative intent that even after an application under Section 9 is finally heard relief would have to be declined and the parties be remitted to their remedy under Section 17. 100. When an application has already been taken up for consideration and is in the process of consideration or has already been considered, the question of examining whether remedy under Section 17 is efficacious or not would not arise. The requirement to conduct the exercise arises only when the application is being entertained and/or taken up for consideration. As observed above, there could be numerous reasons which render the remedy under Section 17 inefficacious. To cite an example, the different Arbitrators constituting an Arbitral Tribunal could be located at far away places and not in a position to assemble immediately. In such a case an application for urgent interim relief may have to be entertained by the Court under Section 9(1). ………………… 107. It is reiterated that Section 9(1) enables the parties to an arbitration agreement to approach the appropriate Court for interim measures before the commencement of arbitral proceedings, during arbitral proceedings or at any time after the making of an arbitral award but before it is enforced and in accordance with Section 36 of the Arbitration Act. The bar of Section 9(3) operates where the application under Section 9(1) had not been entertained till the constitution of the Arbitral Tribunal. The bar of Section 9(3) operates where the application under Section 9(1) had not been entertained till the constitution of the Arbitral Tribunal. Ofcourse it hardly need be mentioned that even if an application under Section 9 had been entertained before the constitution of the Tribunal, the Court always has the discretion to direct the parties to approach the Arbitral Tribunal, if necessary by passing a limited order of interim protection, particularly when there has been a long time gap between hearings and the application has for all practical purposes, to be heard afresh, or the hearing has just commenced and is likely to consume a lot of time. In this case, the High Court has rightly directed the Commercial Court to proceed to complete the adjudication. 108. For the reasons discussed above, the appeal is allowed only to the extent of clarifying that it shall not be necessary for the Commercial Court to consider the efficacy of relief under Section 17, since the application under Section 9 has already been entertained and considered by the Commercial Court. The judgment and order under appeal does not, otherwise, call for interference.” 19. In the present case, arguments on behalf of petitioners were completed on 18.11.2021, whereas arguments on behalf of respondent were concluded on 27.12.2021 and on that date, it was communicated that no further arguments were proposed to be addressed on behalf of the parties and the matter was adjourned for passing order. On 7.1.2022, matter was listed for passing orders. 20. It is also noticeable that in Arbitration Case No.78/2020, though Arbitrator has been appointed, but his appointment shall come into force only after receipt of his disclosure in writing obtained in terms of Section 11(8) of the Act and thereafter he shall enter into reference, but after giving consent to arbitrate the dispute between the parties. Therefore, constitution of Arbitral Tribunal is in process, which shall be completed, on completion of terms referred supra. Even, in case it is construed that constitution of Arbitral Tribunal is complete, then also for ratio laid down by the Supreme Court in Arcellor Mittal case (supra), in the facts and circumstances of this case, this Court is not barred or precluded from pronouncing the order in the present application. 21. Even, in case it is construed that constitution of Arbitral Tribunal is complete, then also for ratio laid down by the Supreme Court in Arcellor Mittal case (supra), in the facts and circumstances of this case, this Court is not barred or precluded from pronouncing the order in the present application. 21. During hearing, it was stated on behalf of the petitioners that though vide interim order dated 5.3.2021, account bearing No.050005001145 maintained by the respondent in ICICI bank, Dharamshala, was ordered to be attached, but the respondent is operating through other accounts, and therefore, attachment of the account is of no use. 22. So far as, the prayer for appointment of Receiver to maintain the affairs of the property and to secure the accounts is concerned, I am of the considered view that at this stage, when the Bank has initiated proceedings under the provisions of SERFASI Act and has taken over the possession of the property in reference and respondent, for payment of monthly Lease Rent to the Bank directly, has been permitted to run business by DRT, by directing the Bank to open the lock, appointment of Receiver will not only prejudice the interest of the respondent, but also of the petitioners, as payment of lease money by the respondent directly to the Bank against loan raised by the petitioners, is also in the interest of both the parties. 23. It is noticeable that cause of dispute between the parties is that petitioners are doubting and respondent is claiming the genuineness of the expenditure incurred by the petitioners for carrying out construction work/interior finishing of the Hotel and maintenance etc. and, in terms of Lease Deed, in my opinion, this dispute is for want of transparency and lack of communication between the parties. Therefore, for equity, fair play and natural justice, it would be appropriate to pass interim injunction, directing the parties, pending adjudication of arbitration proceedings, to sit together for rendition of account, every month alongwith their Chartered Accountant(s) and Civil Engineer(s), if any, engaged by the parties or either party with complete details of accounts of income and expenditure of the Resort to share the details amongst them and verify the same so as to avoid further dispute with respect to future expenditure, if any, to be incurred by the respondent, for which, in terms of Lease Deed, respondent is entitled to recover the same. In such sitting(s), petitioner(s) shall be represented either by all partners or any of them available on the date of sitting and respondent shall be represented either in person or through his representative(s) duly authorized in writing. For convenience of the parties, such sitting(s) shall be arranged on 7th of each month in Anandini Resort and the date shall be changeable with mutual agreement communicated in writing to each other. It is further directed that before incurring any expenditure in future, regarding which reimbursement is permitted in the Lease Deed, respondent shall give prior notice to petitioners, through either partner, with complete detail of the work as agreed in the worksheet referred in Lease Deed. Respondent is also directed to continue payment of Rs.11,68,000/- per month to the Bank regularly during pendency of arbitration proceedings. 24. Aforesaid interim injunction shall continue till further orders passed by the learned Arbitrator either in main petition or in an application under Section 17 of the Act, if any, preferred by either of the parties. However, the interim order dated 5.3.2021 attaching the Bank Account of respondent shall stand vacated forthwith. The case stands disposed of in the aforesaid terms. Pending miscellaneous application(s), if any, shall also stand disposed of.