Facor Alloys Limited Through Its Authorised Representative Sachin Gupta vs Rajadhiraj Tirupani Vinayak Natraj Private Limited
- Court
- Delhi High Court
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC010518612026
+ FAO(OS) (COMM) 295/2026 & CM APPL. 74582/2026, CM
APPL. 74583/2026, CM APPL. 74584/2026
FACOR ALLOYS LIMITED THROUGH ITS AUTHORISED
REPRESENTATIVE SACHIN GUPTA .....Appellant
Through: Mr. Anirudh Wadhwa, Mr.
Keshav Madhav Gulati, Mr. Vibhu Pahuja,
Mr. Prakhar Bajpai, Advs.
versus
RAJADHIRAJ TIRUPANI VINAYAK NATRAJ PRIVATE
LIMITED .....Respondent
Through: Mr. Sandeep Bajaj, Ms.
Aakanksha Nehra, Ms Sanjana Srivastava,
Ms Ishita Sharma, Mr. Mayank Biyani, Ms
Muskan Sengar, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT (ORAL)
% 29.10.2026
C. HARI SHANKAR, J.
1. This appeal, under Section 37(1)(b) of the Arbitration and
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Conciliation Act 1996 , is directed against order dated 14 October
2026 passed by a learned Single Judge of this Court, in OMP (I)
(Comm) 387/2026, preferred by the respondent under Section
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“the 1996 Act” hereinafter
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KUMAR
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9(1)(ii)(c) and (e) of the 1996 Act.
2. Arbitral proceedings between the appellant and respondent
concluded in an arbitral award dated 31 July 2025, the operative
portion of which read thus:
“AWARD
a. A declaration that Rajadhiraj is entitled to return of
its raw materials, finished products and other goods lying at
the said plant of Facor.
b. An order restraining the Respondent from
obstructing removal of the raw materials, finished products
and other goods of Rajadhiraj lying at the said plant of
Facor.
c. An award of ₹ 2,16,83,931/- in favour of Rajadhiraj
and against Facor towards reimbursement of the cost,
incurred by Rajadhiraj for purchase of a Transformer at the
second furnace of Facor.
d. An award of ₹ 18,86,70,779/- in favour of Facor and
against Rajadhiraj towards conversion charges incurred
prior to 12.10.2022.
e. An award of ₹ 37,77,133/- in favour of Facor and
against Rajadhiraj towards post termination invoices raised
by Facor towards conversion charges.
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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 –
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(ii) for an interim measure of protection in respect of any of the following matters,
namely:—
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(c) the detention, preservation or inspection of any property or thing
which is the subject-matter or 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;
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(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.
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KUMAR
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f. Interest on outstanding electricity bills @ 9% p.a. as
per reducing balance from the due date(s) of the electricity
bills.
g. Interest @ 9% p.a. as per reducing balance on
amounts outstanding against invoices towards conversion
charges from the 22nd day from the date of the Invoices.
h. Parties shall bear their own cost.
i. It will be open to the Claimant to adjust ₹
2,16,83,931/- against its dues to Facor. Needless to mention
that the interest on the said amount may also be
proportionally adjusted against the interest due from
Rajadhiraj to Facor.”
3. Post award, the respondent filed OMP (I) (Comm) 387/2026,
alleging that, after the award had been rendered, he had addressed two
e-mails to the appellant on 14 July 2026 and 13 August 2026, seeking
inspection of the goods which had been attached and were present in
the premises of the appellant, but that no favorable response had been
received thereto. The respondent prayed, therefore, that local
commissioners be appointed to inventorize the goods which were
under seizure and lying in the premises of the appellant.
4. By the impugned order dated 14 October 2026, a learned Single
Judge of this Court has acceded to the prayer of the respondent and
has appointed two Local Commissioners to visit the premises of the
appellant in the following terms:
“18. The Local Commissioners shall also have the following
powers:
a. prepare an inventory recording their description,
quantity/approximate weight, location, identifying
particulars and apparent physical condition, including
whether the subject goods are separately identifiable or
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KUMAR
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commingled;
b. undertake photography and videography of the
goods and areas inspected;
c. verify the inventory, where necessary, with
reference to available weighment records, stock registers
and inward/outward movement records;
d. permit atleast one authorised representative and
counsel of each party to remain present and require
reasonable cooperation from the parties;
e. where necessary, draw and seal representative
samples for preservation, subject to further orders of
appropriate Court
f. record any shortage, obstruction, commingling or
inability to identify the subject goods;
g. seek police assistance, if required, for effective
execution of the commission.
19. The Respondent shall extend all necessary cooperation for
execution of the commission.
20. The Local Commissioners shall file a report before this
Court along with the inventory, photograph and videography
within four weeks from execution of the commission.”.
5. The appellant has challenged the aforesaid order before this
Court by means of the present appeal.
6. We have heard Mr. Anirudh Wadhwa, learned Counsel for the
appellant and Mr. Sandeep Bajaj, learned Counsel for the respondent
at some length.
7. Mr. Wadhwa submits that the proceedings for execution of the
award are already pending before the learned Commercial Court at
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KUMAR
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Vishakhapatnam , though Mr. Bajaj points out that the execution
proceedings were instituted after OMP (I) (Comm) 387/2026 had been
filed by him before this Court.
8. Mr. Wadhwa submits that a Bailiff has already been appointed
by the Vishakhapatnam Court, who has inventorized the goods in
question and that, therefore, the learned Single Judge was not justified
in passing the impugned order.
9. To a specific query from the Court as to whether the impugned
order is passed without jurisdiction, Mr. Wadhwa has drawn our
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attention to Section 47(1) of the Code of Civil Procedure, 1908.
10. Clearly, Section 47(1) is no impediment to the passing of the
impugned order by the learned Single Judge. What Section 47(1)
states is that questions arising between the parties to a suit in which a
decree is passed, relating to execution, discharge or satisfaction of the
decree, are to be determined by the executing court.
11. “Determination” connotes an expression of opinion which lends
finality to the issue determined. In Ashok Leyland Ltd v. State of
5
T.N. , the Supreme Court held, apropos “determination”, thus:
“94. The word “determination” must also be given its full effect,
which presupposes application of mind and expression of the
conclusion. It connotes the official determination and not a mere
opinion of finding.
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“Vishakhapatnam Court” hereinafter
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47. Questions to be determined by the Court executing decree.
(1) All questions arising between the parties to the suit in which the decree was passed, or
their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a separate suit.
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(2004) 3 SCC 1
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95. In Aiyar, P. Ramanatha: Law Lexicon, 2nd Edn., it is
stated:
“ Determination or order . – The expression ‘determination’
signifies an effective expression of opinion which ends a
controversy or a dispute by some authority to whom it is
submitted under a valid law for disposal. The expression
‘order’ must have also a similar meaning, except that it
need not operate to end the dispute. Determination or order
must be judicial or quasi-judicial. Jaswant Sugar Mills
6
Ltd. v. Lakshmi Chand (Constitution of India, Article
136).”
96. In Black's Law Dictionary, 6th Edn., it is stated:
“A ‘determination’ is a ‘final judgment’ for purposes of
appeal when the trial court has completed its adjudication
of the rights of the parties in the action. Thomas Van
7
Dyken Joint Venture v. Van Dyken .”
12. By appointing Local Commissioners to inventorize the goods
present in the appellant’s premises, to which the arbitral award entitles
the respondent, it is clear that the learned Single Judge has
“determined” nothing at all, let alone any question relating to
execution, discharge or satisfaction of the award under challenge. All
that has been directed by the learned Single Judge, by the order under
challenge, is an inventorisation of the goods in question, by the Local
Commissioners appointed by him.
13. The jurisdiction of the learned Single Judge to pass such an
order, even at a post award stage, cannot be disputed. Section 9, in
express terms, applies till the stage of execution of the decree or the
award in question. As the execution proceedings are still pending, the
jurisdiction of the Court to pass orders under Section 9 cannot be
6
AIR 1963 SC 677
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90 Wis 236, 279 NW 2d 459, 463
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gainsaid. The provision expressly entitles a party to apply for interim
measures “before or during arbitral proceedings or at any time after
the making of the arbitral award but before it is enforced”. The
arbitral award under consideration in the present case has not been
enforced, even if proceedings to have it enforced are pending. Ergo,
the learned Single Judge was well within his jurisdiction to exercise
powers under Section 9(1).
14. In National Projects Construction Corpn. Ltd. v. Ishvakoo
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(India) (P) Ltd , the Supreme Court has held that even the
unsuccessful party in the arbitration can seek interim measures post-
award, under Section 9, to preserve the corpus which was subject
matter of arbitration.
15. The impugned order is clearly one, the passing of which Section
9(1)(ii)(c) statutorily envisages. Section 9(1)(ii)(c) empowers the
Court to pass orders for “detention, preservation or inspection or thing
which is the subject matter of the dispute in arbitration … ” Inter alia ,
the provision envisages the authorization of any person (which would
include a local commissioner) to enter into any premises to “obtain
full information” regarding such goods. The word “information” is
compendious, and has to be treated as having been deliberately
employed by the legislature so as to widen the ambit of Section
9 th
9(1)(ii)(c). P. Ramanatha Aiyar, in the 6 Edition of his Advanced
Law Lexicon, defines “information” as “facts, data or instructions in
any medium or form”. The particulars of the goods in question, in the
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2026 SCC OnLine SC 1535
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Refer Eureka Forbes Ltd v. Allahabad Bank, (2010) 6 SCC 193 (para 52), Raman Lal Bhailal Patel v.
State of Gujarat, (2008) 5 SCC 449
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present case, which the Local Commissioners appointed by the
impugned order have been directed to ascertain, would, at any rate,
certainly constitute “information” regarding the goods.
16. There is no provision curtailing the power of the Court, to issue
directions under Section 9(1)(ii)(c), pending execution proceedings.
Where the legislature has not chosen to engraft any such restraint, no
such restraint can be introduced by judicial fiat.
17. As such, the fact that a bailiff may have been appointed by the
Vishakhapatnam Court cannot be treated as a legal bar to the learned
Single Judge having passed the impugned order in exercise of the
jurisdiction vested in him by Section 9.
18. Moreover, the learned Single Judge has not passed the order
mechanically or without reasons. In para 16 of the order under
challenge, the learned Single Judge observes that, as the respondent
was denied inspection of the goods in question , despite the arbitral
award recognizing its entitlement thereto, inventorization of the goods
was necessary.
19. No possible legal cavil can be taken to this reasoning.
20. Mr. Wadhwa has expressed an apprehension that, if
inventorisation of the goods is permitted both by the learned Local
Commissioners appointed by the impugned order as well as by the
bailiff appointed by the Vishakhapatnam Court, contradictory findings
may emerge. The submission is surprising. The bailiff appointed by
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the Vishakapatnam Court, and the Local Commissioners appointed by
the learned Single Judge, represent the Court, and all its authority. In
case the appellant does not intend to tamper with the goods, which are
lying in its premises albeit under attachment, we do not see how or
why such an apprehension should exist. We say no more on this score.
21. As the impugned order is clearly within the jurisdiction vested
in the learned Single Judge as a post award Section 9 Court, and is
substantiated with reasons which sustain legal scrutiny, we are of the
opinion that no case for interference by us under Section 37 of the
1996 Act is made out.
22. The appeal is accordingly dismissed in limine .
C. HARI SHANKAR, J.
HARISH VAIDYANATHAN SHANKAR, J.
OCTOBER 29, 2026/ dsn
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KUMAR
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