JUDGMENT (Prayer: Application filed under Order XIV Rule 8 of Original Side Rules r/w Sec 9 (1)(ii)(e) of the Arbitration and Conciliation Act, 1996 to direct the 2nd respondent to issue an addendum to the notice of sale through private treaty dated 09.11.2022 and bring on record the applicant''s charge over the 1st respondent''s property at Door No.383, Velacherry Tambaram Main Road, Velacherry, Chennai - 600 042 and further to secure the applicant''s interest to the tune of Rs.3,13,84,043/- (Rupees Three Crore Thirteen Lakhs Eight Four Thousand Forty Three only) inclusive of interest at 18% p.a. calculated on the principal amount until 24.01.2023 together with future interest, in the event of realisation of sale proceeds over and above the claim of 2nd respondent against the 1st respondent by way of sale of the property at Door No.383, Velacherry Tambaram Main Road, Velacherry, Chennai - 600042.) 1. This application has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 seeking for a direction to the 2nd respondent to issue an addendum to the notice of sale through private treaty dated 09.11.2022 and bring on record the applicant''s charge over the 1st respondent''s property at Door No.383, Velacherry Tambaram Main Road, Velacherry, Chennai - 600 042 and further to secure the applicant''s interest to the tune of Rs.3,13,84,043/- (Rupees Three Crores Thirteen Lakhs Eight Four Thousand Forty Three only) inclusive of interest at 18% p.a. calculated on the principal amount until 24.01.2023 together with future interest, in the event of realisation of sale proceeds over and above the claim of 2nd respondent against the 1st respondent by way of sale of the property at Door No.383, Velacherry Tambaram Main Road, Velacherry, Chennai - 600 042. 2. The applicant had agreed to purchase the aforementioned property from the 1st respondent under a Memorandum of Understanding dated 19.05.2019. The applicant has terminated the Memorandum of Understanding dated 19.05.2019 on the ground that the 1st respondent has committed a breach of the said Memorandum of Understanding. In view of the termination, the applicant has sought for refund of the advance amount paid to the 1st respondent under the Memorandum of Understanding dated 19.05.2019. There is an arbitration clause in the Memorandum of Understanding dated 19.05.2019. The applicant has already initiated arbitration in terms of the arbitration clause and a sole arbitrator has acted upon the reference. In view of the termination, the applicant has sought for refund of the advance amount paid to the 1st respondent under the Memorandum of Understanding dated 19.05.2019. There is an arbitration clause in the Memorandum of Understanding dated 19.05.2019. The applicant has already initiated arbitration in terms of the arbitration clause and a sole arbitrator has acted upon the reference. Before the sole arbitrator, the 1st respondent has also made a counter claim. According to them, the applicant has committed breach of Memorandum of Understanding dated 19.05.2019 and they have also committed breach of the Letter of Intent(LoI), dated 08.05.2017 and the Addendum to the Letter of Intent, dated 26.10.2017. It is an undisputed fact that in the arbitration, trial has got completed and it is in the arguments stage. 3. The applicant contends that a similar relief cannot be granted by the Arbitrator under Section 17 of the Arbitration and Conciliation Act, 1996, since the relief has been sought for against a 3rd party viz., the 2nd respondent in this application. 4. As seen from the Letter of Intent dated 08.05.2017 and the Addendum to the Letter of Intent, dated 26.10.2017, the applicant was aware about the mortgage in respect of the property morefully described in the schedule to the Judges Summons, while entering into the Memorandum of Understanding dated 19.05.2019 with the 1st respondent. The applicant also came to know about the liability of the 1st respondent to the secured creditor while signing the Memorandum of Understanding dated 19.05.2019. As part of the sale consideration under the Memorandum of Understanding dated 19.05.2019, the applicant has undertaken to settle the dues of the secured creditor. The property morefully described in the schedule to the Judges Summons was brought for sale under the SARFAESI Act by the secured creditor in view of the default committed by the 1st respondent in the repayment of the amount. The property was sold under a SARFAESI sale on 03.03.2023 as seen from the sale certificates issued by the secured creditor viz., the 2nd respondent. Certain monies have been realised from the said sale of the property. According to the applicant excess money is now lying with the 2nd respondent and in due course, the same will be paid to the 1st respondent, who is the borrower. The present application has been filed to secure the interest of the applicant as claimed in the arbitration. Certain monies have been realised from the said sale of the property. According to the applicant excess money is now lying with the 2nd respondent and in due course, the same will be paid to the 1st respondent, who is the borrower. The present application has been filed to secure the interest of the applicant as claimed in the arbitration. According to the applicant, if the excess money available with the 2nd respondent is paid to the 1st respondent, they will not have any security to recover the dues payable to the applicant by the 1st respondent which is claimed in the arbitration. However, as seen from the arbitral proceedings, the claim of the applicant is disputed by the 1st respondent. The 1st respondent has also made a counter claim against the applicant for a sum of Rs.10,91,25,945/-. According to the 1st respondent, under the Letter of Intent dated 08.05.2017 and the Addendum to the Letter of Intent, dated 08.05.2017, where the applicant was a Lessee they had committed default in the payment of the lease rentals to the 1st respondent. 5. Due to the breach of contract, alleged to have been committed by the applicant, the 1st respondent has made a counter claim of Rs.10,91,25,945/- before the Arbitral Tribunal. The Arbitral Tribunal has also framed issue to that effect. On the contrary, the applicant would contend that they are not liable to pay the lease rentals to the 1st respondent, since they never took possession of the property from the 1st respondent. It is also their case that on the ground of novation, in view of entering into the Memorandum of Understanding dated 19.05.2019, they are not liable to pay any amount to the 1st respondent. The contentions of the respective parties are under consideration by the Arbitral Tribunal. The trial has already been completed before the Arbitral Tribunal and it is in the arguments stage. It is brought to the notice of this Court by both the learned counsels that the arbitrator has also reserved the case for orders pertaining to applications filed by the 1st respondent against the applicant under Section 17 of the Arbitration and Conciliation Act, 1996. It is brought to the notice of this Court by both the learned counsels that the arbitrator has also reserved the case for orders pertaining to applications filed by the 1st respondent against the applicant under Section 17 of the Arbitration and Conciliation Act, 1996. The learned counsel for the applicant would submit that since the relief is sought against a third party namely the 2nd respondent in this application, the arbitrator cannot grant the relief which the applicant is seeking in this application. Only on that ground, he would submit that this Court will have to consider granting an interim order as prayed for in this application. In support of his submission, he also drew the attention of this Court to an order passed by the Delhi High Court in the case of Blue Coast Infrastructure Development Pvt. Ltd. vs. Blue Coast Hotels Ltd. and another reported in 2020 SCC Online Del 1897 and in particular, he referred to paragraph No.27 of the said order. 6. As seen from both the Sections viz., Section 9 and Section 17 of the Arbitration and Conciliation Act, 1996 the interim relief that can be granted are almost identical in nature. 7. Sections 9 and 17 of the Arbitration and Conciliation Act, 1996 are reproduced hereunder :- Section 9 9. Interim measures, etc,. 6. As seen from both the Sections viz., Section 9 and Section 17 of the Arbitration and Conciliation Act, 1996 the interim relief that can be granted are almost identical in nature. 7. Sections 9 and 17 of the Arbitration and Conciliation Act, 1996 are reproduced hereunder :- Section 9 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— (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely:— (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (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 authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (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. (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. (3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious. Section 17 17. (3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious. Section 17 17. Interim measures ordered by arbitral tribunal.-- (1) A party may, during the arbitral proceedings, apply to the arbitral tribunal— (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely:-- (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (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 authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it. (2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Court. 8. However, as seen from Section 9(3) of the Arbitration and Conciliation Act, 1996, it is clear that this Court shall not entertain an application under Sub Section (1) unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious. 9. The relief sought for in this application is a discretionary relief. An Arbitral Tribunal has already been constituted. 9. The relief sought for in this application is a discretionary relief. An Arbitral Tribunal has already been constituted. Admittedly, the trial before the arbitrator has already got completed and the stage of the arbitration is in the arguments stage. The applicant was also aware of the mortgage with the secured creditor at the time of signing the Memorandum of Understanding, dated 19.05.2019, which is the subject matter of dispute between the parties. The liability of the 1st respondent to the secured creditor was also known to the applicant at the time of signing the Memorandum of Understanding, dated 19.05.2019, which is the subject matter of the dispute. A counter claim has also been filed by the 1st respondent against the applicant before the Arbitrator on account of the alleged non-payment of lease rentals by the applicant to the 1st respondent under the Letter of Intent dated 08.05.2017 and the Addendum to the Letter of Intent, dated 26.10.2017. 10. Admittedly, the applicant prior to the Memorandum of Understanding dated 19.05.2019 had entered into a Letter of Intent, dated 08.05.2017 and Addendum to the Letter of Intent, dated 26.10.2017 with the 1st respondent. The property which is the subject matter of a) Letter of Intent, dated 08.05.2017; b) Addendum to the Letter of Intent, dated 26.10.2017, and c) Memorandum of Undertaking dated 19.05.2019 are one and the same. The 1st respondent claims that lease rentals were not paid by the applicant to the 1st respondent as per the Letter of Intent dated 08.05.2017 and the Addendum to the Letter of Intent, dated 26.10.2017, which is disputed by the applicant, who claims that he was not put in possession of the property and therefore the Letter of Intent dated 08.05.2017 and the Addendum to the Letter of Intent, dated 26.10.2017 was never acted upon. This dispute cannot be considered by this Court at this stage when the arbitration has already commenced and is in the verge of finality for pronouncement of the Arbitral Award by the Arbitral Tribunal. Only in exceptional cases, when there is no other efficacious remedy available, this Court will entertain an application under Section 9 of the Arbitration and Conciliation Act, 1996, when an Arbitral Tribunal has already been constituted, as seen from Section 9(3) of the Arbitration and Conciliation Act, 1996. Only in exceptional cases, when there is no other efficacious remedy available, this Court will entertain an application under Section 9 of the Arbitration and Conciliation Act, 1996, when an Arbitral Tribunal has already been constituted, as seen from Section 9(3) of the Arbitration and Conciliation Act, 1996. The decision relied upon by the learned counsel for the applicant viz., the Delhi High Court''s decision referred to supra will depend upon the facts and circumstances of each case. Therefore, the said decision has no applicability for the facts of the instant case. Being a discretionary relief and being an admitted fact that the Arbitral Tribunal has already been constituted and the arbitration is in its final stage, the question of entertaining this application at this stage will not arise. Further it is also to be noted that as seen from the interim relief sought for in this application, the 1st limb of the prayer has now become infructuous, since the property has already been sold through a SARFAESI sale to the 2nd respondent, who is now put in possession and the 2nd limb of the prayer cannot also be granted in view of the reasons stated supra by this Court. 11. For the foregoing reasons, there is no merit in this application and accordingly, this application is dismissed. No costs.