Thor Ventures (OPC) Private Limited vs Nyeq Technologies Private Limited

Tushar Rao Gedela, J.

I.A. 27471/2026 (Under Order XXXIX Rules 1 and 2 CPC) in O.M.P. (I) (COMM) 461/2026 & I.A. 27476/2026 (Under Order XXXIX Rules 1 and 2 CPC) in O.M.P. (I) (COMM) 462/2026

These are applications on behalf of the petitioner under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908, seeking ad-interim protection with respect to properties bearing No. A-211, DLF City, Phase-I, DLF Qutub Enclave, Tehsil and District Gurugram, Haryana, admeasuring 420 sq. mtrs. (502.32 sq. yards) and No. B-7/4, DLF City, Phase-I, DLF Qutub Enclave, Tehsil and District Gurugram, Haryana, admeasuring 420 sq. mtrs. (502.32 sq. yards), which are subject matters of present petitions filed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”).

The petitioner and the respondent executed two Agreements to Sell (hereinafter referred to as “ATS”) with identical terms and conditions as follows:

The petitioner had paid Rs.5,00,000/- each towards a consideration of Rs.5,62,24,000/- of each property, thus paying a total of Rs.10,00,000/- out of the combined sale consideration of Rs.11,24,48,000/- during the signing of the two ATSs. Per Clause 3 of the ATSs, certain obligations were to be fulfilled by the respondent, such as boundary/fencing of the property, erection of name board, mutation of seller to be updated in the revenue records of DLF, No Dues Certificate/House Property Tax upto date, No Dues Certificate and NOC for sale of property from RWA/DLF/DLF Maintenance Agency.

Pursuant to the respondent’s instructions, the petitioner paid Rs.92,031/- to DLF towards mutation & late construction charges and a further sum of Rs.7,093/- to DLF Estate Developers Ltd. towards maintenance charges for Property No. B-7/4. The petitioner further paid Rs.58,358/- to DLF towards mutation & late construction charges and Rs.7,093/- to DLF Estate Developers Ltd. towards maintenance charges for Property No. A-2/1. The mutation was effected in favour of the respondent on 09.09.2019 and 12.09.2019 for the B-7/4 and A-2/1 respectively, and the respondent handed over the original Endorsement Letter and Certified Zoning Plan dated 09.09.2019 for both properties to the petitioner.

However, allegedly, the respondent delayed fulfilment of its obligations under Clause 3 of the ATSs and further informed the petitioner that the original title documents were with the director of the respondent in Dubai.

The petitioner had got loans sanctioned for the balance consideration for each property from Pooja Finelease Limited (hereinafter referred to as ‘PFL’) through two Loan Sanction Letters dated 07.07.2019. However, the respondent never came forward to execute the sale deeds as per the ATSs, and sent back the consideration of Rs.5,00,000/- each for both properties to the petitioner on 08.02.2021.

Apprehending that the respondent would create third party rights in the subject properties, the petitioner invoked the Arbitration Clause encapsulated in Clause 11 of the ATSs vide notice dated 08.02.2021 with respect to both the properties, appointing Mr. Rajat Bhalla as the Sole Arbitrator. The Sole Arbitrator passed a stay order dated 11.02.2021 with respect to the subject properties.

Subsequently, vide order dated 15.02.2023, in a petition filed by the respondent under Section 14 of the Act, Mr. Rajat Bhalla was replaced by Mr. Justice Jayant Nath (Retd.) as the Sole Arbitrator.

The petitioner filed its Statement of Claim on 09.03.2021 with the following prayers:

An identical Statement of Claim with respect to the B-7/4 property was also filed seeking the same relief as above.

The respondent filed its Statements of Defence on 04.06.2021 in both the arbitration proceedings, inter alia, claiming that the ATSs dated 04.05.2019 were forged and sham, executed by a person without authorisation from the respondent, relying on fake board resolutions. The respondent claimed that it only became aware of the deposit of Rs.5 lakh by the petitioner in January, 2021, and returned the said amount promptly on 08.02.2021. The respondent further alleged that the payment had been with respect to a loan transaction with the promoter of the petitioner. The respondent levelled allegations that the petitioner is a One-Person Company, and the Director had been involved in a loan transaction with another entity connected with the director of the respondent, which led to acrimonious relations between the parties. As such, there was no question of executing an ATSs with the petitioner.

The petitioner, in rejoinder dated 07.08.2021, in both the arbitration proceedings, stated that the respondent has never taken any action against the authorised representative, despite now claiming that he was not authorised to execute the ATSs on his behalf.

The learned Sole Arbitrator framed the following issues on 07.08.2021:

An additional issue was added as Issue II(a) on 08.05.2023:

Further, the learned Sole Arbitrator continued the interim order dated 11.02.2021 till the disposal of the arbitration proceedings.

After several hearings the learned Sole Arbitrator passed separate Awards dated 26.09.2026 in both the proceedings with the following identical findings:

In view of the above, the petitioner has moved this Court under Section 9 of the Act to restrain the respondent from creating third party rights in the subject properties during the pendency of challenge to the Awards dated 26.09.2026 under Section 34 of the Act.

Mr. Dayan Krishnan, learned senior counsel appearing for the petitioner, at the outset contended that the impugned Award dated 26.09.2026, while upholding the validity of the ATSs dated 04.05.2019, had non-suited the petitioner on the failure of the petitioner to establish its readiness and willingness by holding that the Loan Sanction Letter dated 07.07.2019 (hereinafter referred to as “LSL”) of PFL is a sham document. According to learned senior counsel, the said finding is perverse for the reason that there is no evidence brought on record enabling the learned Arbitral Tribunal to give a conclusive finding that the said document is sham. In fact, according to the learned senior counsel, there is overwhelming evidence to the contrary, produced on record by the petitioner apart from oral evidence in the form of examination of CW-2, the authorised representative of PFL, who categorically asserted not only the financial status of the said company but also supported all the relevant financial documents placed on record.

The learned senior counsel would stoutly contend that even though the law relating to evidence may not be applicable stricto sensu to the arbitral proceedings, however, the appreciation of evidence and consideration of the same cannot be diluted. It is the vehement contention of the learned senior counsel that without either the respondent or the learned Arbitral Tribunal putting relevant question to discredit the oral evidence of CW-2 or the loan document alongwith other documents to the CW-2, rendering conclusive findings to the extent that the document is sham without any such legalistic evaluation, would amount to clear perversity in the findings recorded by the learned Arbitral Tribunal. This perversity, according to the learned senior counsel, propelled the learned Tribunal to reject the claim sought for specific performance which has necessitated the petitioner to seek urgent interim protection from this Court.

In support of the aforesaid submissions, Mr. Krishnan, learned senior counsel, copiously referred to the examination-in-chief by way of affidavit of CW-2 and his cross-examination. He would contend that on a clear reading of the evidence as also the cross-examination, it is apparent that the learned Arbitral Tribunal misdirected itself and committed not only error but also perversity by concluding, without any ostensible reason, that the petitioner has failed to establish readiness and willingness. He would contend that CW-2 has clearly withstood the cross-examination, and in fact has established that PFL is registered as Non Banking Financial Company (hereafter referred to as the “NBFC”) with the Reserve Bank of India (hereinafter referred to as the “RBI”) as also that the asset size of the said company is worth Rs.200 crores. To the question in respect of examination of title documents is concerned, learned senior counsel would submit that it is the admitted case of the respondent that original title documents are lost and it is only the photocopies which were furnished for verification, thus, the said instance could not have weighed against the petitioner. Equally, to the question relating to physical inspection of the property, CW-2 affirmed the same. Learned senior counsel would also contend that CW-2 also answered in the affirmative and with conviction that the disbursement is not advancement of the loan but against the mortgage of the registered sale deed of the property which would be executed in favour of the petitioner. He also would submit that the CW-2 also withstood and supported the LSL by asserting that even if the said letter was valid for a limited period, PFL is ready and willing to pay the sale consideration even as on the day when the witness was being cross-examined. Learned senior counsel would further submit that the learned Arbitral Tribunal returned no finding on the respondent’s prior obligations under Clause 3 of the ATSs dated 04.05.2019 which were a pre-condition to the payment of the balance consideration, thus being integral to any finding on readiness and willingness.

In view of the above, learned senior counsel would contend that all the ingredients that are required by the purchaser to establish readiness and willingness have in fact been brought on record and proved duly in accordance with law. According to him, in such circumstances rejecting the establishment of readiness and willingness merely on the ipse dixit of the learned Arbitral Tribunal that the LSL is a sham document is abject perversity which may require this Court to consider granting interim relief. Learned senior counsel would rely on the judgement of the Supreme Court in Ssangyong Engineering v. NHAI, (2019) 15 SCC 131 and the judgement of a Division Bench of this Court in D.V. Anand v. HPCL, FAO (OS)(COMM) 139/2018 dated 01.07.2026 to contend that the said finding is perverse.

Apart from the above, learned senior counsel would submit that the only assets available with the respondent are the subject properties. This, coupled with the fact that the petitioner did not seek any alternate relief of damages and solely sought a claim of specific performance, in case this Court is not inclined to pass any interim orders restraining the respondent from disposing of the only two assets it has, the challenge to impugned Arbitral Awards by the petitioner under Section 34 of the Act filed by the petitioner, would be rendered infructuous. He would contend that since no damages were sought by petitioner and in case no interim orders restraining the respondent from alienating the only properties it has is passed, not only the pendency of the petition under Section 34 would be rendered infructuous, the petitioner would actually be left with no remedy. He would contend that no party can be left remediless.

In order to demonstrate perverse findings learned senior counsel copiously read relevant paragraphs of the impugned Arbitral Award dated 26.09.2026. In particular, after having perused the LSL and the statement of the witnesses and their cross-examination the learned Arbitral Tribunal came to definitive conclusions in paras 91, 92, 93, and 96. According to learned senior counsel, these conclusions without there being any evidence or cross-examination to support, can be referred as extraneous to the pleadings or the evidence on record and must be necessarily eschewed from consideration. If so eschewed, according to learned senior counsel, the learned Arbitral Tribunal could not, in any manner whatsoever, conclude that the petitioner could not establish readiness and willingness.

On law, learned senior counsel would refer to and heavily rely on the judgement of the Supreme Court in Home Care Retail Marts Pvt. Ltd v. Haresh N. Sanghavi, 2026 INSC 415, to submit that even an unsuccessful party to the arbitration proceedings is entitled to invoke a petition under Section 9 seeking post award interim protection/relief. He would submit that the Supreme Court has observed that such interference or interim protection orders can be granted by a Court only in “rare and compelling cases”. He would submit that the present case illustrates one such situation for the reason that the subject matter of the disputes is the subject property which, if disposed, would render not only the present petition infructuous, but also the challenge to the impugned Awards under Section 34 of the Act. This, coupled with the fact that the petitioner did not seek any relief of damages and the subject properties are the only assets of the respondent, the petitioner would be rendered remediless. He would submit that the Supreme Court also observed that invocation of Section 9 of the Act by an unsuccessful party may prevent irreparable prejudice and at the same time preserve the efficacy of the challenge laid in a petition under Section 34 of the Act. The only caveat placed by the Supreme Court in such a situation upon such a party was the higher threshold of establishing prima facie case for seeking interim relief. He would submit that all the aforesaid ingredients are fully met with in the present facts. Learned senior counsel relied on Saptarishi Hotels Pvt. Ltd. v. National Institute of Tourism & Hospitality Management, (2019) SCC Online TS 1765 which was approved in Home Care Retail (supra) to illustrate that the Telangana High Court had allowed a petition under Section 9 of the Act by a party which had been unsuccessful before the arbitral tribunal in its claim of restoration/specific performance.

Mr. Krishnan, learned senior counsel, would point out that as per the Supreme Court’s decision in Gayatri Balasamy v. ISG Novasoft Technologies Ltd., (2025) 7 SCC 1, the Court’s powers of severability and modification of an arbitral award stand affirmed. Therefore, learned senior counsel would contend that if the tribunal’s finding of the LSL being sham is set aside, then the same would lead to a modification which is inevitably of specific performance of the ATSs. As such, the learned senior counsel would argue that in the event of refusal of the protection being sought in this petition, the petitioner would be left remediless in case it is eventually successful in its petition under Section 34.

The learned senior counsel would submit that the triple test of prima facie case, balance of convenience and irreparable injury is also satisfied, since the petitioner was only non-suited on the finding of not establishing readiness and willingness, which finding is contrary to the evidence on record. He would contend that the balance of convenience is in favour of the petitioner in view of the interim stay on the subject properties having operated for more than five years during the pendency of the arbitration proceedings. Further, he would again strenuously emphasise that in the absence of the continuation of stay order, the respondent could alienate the subject properties and render the petitioner remediless, thus causing irreparable injury.

Thus, learned senior counsel would submit that the prayers as sought may be granted.

Appearing for the respondent, Mr. Sahil Sethi, learned counsel, vehemently refuted the submissions of the petitioner.

Adumbrating the background facts, learned counsel would submit that the ATSs were executed for two plots namely plot no.A-2/1 and B-7/4, DLF City, Phase-I Gurugram, each for a consideration of Rs.5,62,24,000/- against which a meagre advance payment of Rs.5,00,000/- each was made. He would submit that this advance payment is less than one percent (1%) of the total sale consideration. He stated that from 04.05.2019 when the ATSs were executed and until the respondent refunded the aforestated advance to the petitioner on 08.02.2021, the petitioner did not take even a single step to get the sale deed executed. It is only after the advance payment was refunded that arbitration was invoked unilaterally by the petitioner and by the order dated 11.02.2021 an ex parte restraint order was passed by the then Arbitrator. He would submit that it is on the respondent’s application that this Court by the order dated 15.02.2023 referred the dispute to the learned Arbitral Tribunal whose award is subject matter of the present petition.

Learned counsel would forcefully contend that the law in respect of interference with conclusions based on facts are fairly well settled in the realm of arbitral awards. He would submit that the learned Arbitral Tribunal has, after closely scrutinizing the evidence and the cross examination of the witnesses and after evaluating and appreciating the documents placed on record by the petitioner, has recorded a clear finding of fact against the petitioner. He strenuously argued that this part of the Arbitral Award cannot, by any stretch of imagination, be amenable or questionable in a Court considering a petition under Section 34 much less in a petition under Section 9 of the Act. In any case, it is trite that if there are two possible views then the Court will not interfere with the arbitral award solely for the reason that in the opinion of the Court, the view other than the one taken by the learned Tribunal was also plausible. According to him, this is impermissible in law. For the said proposition, he relied on the judgement of the Apex Court in Delhi Airport Metro Express Pvt. Ltd. v. DMRC, (2022) 1 SCC 131.

Referring to the evidence, the cross examination as also the documents in question, learned counsel would contend that the respondent has utterly failed in demonstrating its readiness and willingness which was predicated purely on the LSL issued by PFL. He would submit that relevant documents in terms of demonstrating financial capacity to purchase the subject properties were neither filed by the petitioner nor by PFL. Except for the LSL, which also has been held to be a suspicious document by the learned Arbitral Tribunal, there is no supporting document to substantiate or establish the financial capacity of either the petitioner or the PFL. Relying upon the Supreme Court’s judgement in Ritu Saxena v. J.S. Grover, (2019) 9 SCC 132, learned counsel would contend that it is in such dearth of crucial and essential documents demonstrating the financial capacity of both the petitioner as also PFL, that the learned Arbitral Tribunal had recorded that not only the LSL is suspicious but also that it was a sham document.

To the submission of the petitioner that the respondent ought to have put pertinent questions to the witnesses namely, CW-1 and CW-2, he would forcefully contend that the onus to prove readiness and willingness is squarely that of the petitioner and none else. He would contend that it would be against the canons of law to contend that in a case of specific performance the onus of proving financial capacity and readiness and willingness would shift to any party other than the plaintiff or the claimant. He would submit that it is only when the claimant or the plaintiff successfully establishes the issue, that the burden or the onus shifts to the opposite party. He would support the said proposition by adverting to the Supreme Court’s judgement in Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243 and Mehboob-ur-Rehman v. Ahsanul Ghani, (2019) 19 SCC 415. According to the learned counsel, having failed to prove readiness and willingness, the submission that the respondent did not put appropriate questions in cross examination, would not enure to the benefit of the petitioner. As such, learned counsel would forcefully contend that the present petition ought to be dismissed.

At this stage, learned counsel took the Court through para 80 onwards of the Arbitral Award to substantiate the contention that the learned Arbitral Tribunal has applied its mind clearly to the facts which have obtained in the present petition and after careful scrutiny of the documents and the evidence of the witnesses, recorded a conclusion that the LSL is a sham document. In particular, he emphasized on paras 86 to 97 of the impugned Arbitral Award to submit that the conclusions on facts cannot be interfered with, being based on sound reasons.

On law, learned counsel would submit that for a petition under Section 9 of the Act to succeed, the triple test as enunciated by the Supreme Court is to be met with by the petitioner, which it has miserably failed to do so. Moreover, he would submit that the Supreme Court in Home Care Retail (supra) has categorically held that the threshold of the triple test in a petition under Section 9 of the Act, that too post the award, is at a higher pedestal than at any previous stage of the arbitral proceedings. In respect of the present challenge, which would invariably require this Court to re-appreciate evidence, he would contend that law in that context is well settled against such re-appreciation. He would contend that readiness and willingness is an issue of fact for which he relies on Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan, (1999) 5 SCC 651 and Madhukar Nivrutti Jagtap v. Pramilabai Chhandulal Parandekar, (2020) 15 SCC 731.He also would rely on the judgement of the Supreme Court in OPG Power Generation (P) Ltd. v. Enexio Power Cooling Solutions (India) (P) Ltd., (2025) 2 SCC 417 and Ssangyong Engineering v. NHAI, (2019) 15 SCC 131 to submit that the quality and quantity of appraisal of evidence are the sole domain of the arbitrator, who is the ultimate master to appreciate such aspects and cannot be questioned in a petition either under Section 9 or even under Section 34 of the Act.

For the proposition that patent illegality does not reach a plausible view on facts, and that the Courts have declined to re-appreciate or re-weigh the arbitrator’s finding on readiness and willingness, learned counsel would rely on the Supreme Court’s judgement in Delhi Airport Metro Express (supra) and this Court’s judgements in Rudra Buildwell Pvt. Ltd. v. Realworth India Pvt. Ltd., OMP 6/2022 dated 29.10.2024 and Millenium Realtech Pvt. Ltd. v. Opaque Infrastructure Pvt. Ltd., FAO (OS)(COMM) 246/2023 (DB) dated 16.02.2026.

Learned counsel strenuously contended that the balance of convenience is clearly tilted in favour of the respondent and not the petitioner. In this context, learned counsel would submit that the sale consideration of each of the two subject properties was Rs.5,62,24,000/- against which the petitioner paid an advance of a meagre sum of Rs.5,00,000/- which is less than one per cent of the sale consideration. Moreover, since no action to proceed with the execution of the sale deed was undertaken by the petitioner for 21 months, the respondent refunded the said advance payment of Rs.5,00,000/- on 08.02.2021. Since then, till the Award was passed by the learned arbitral Tribunal, the petitioner has not deposited a single penny. In such circumstances, the balance of convenience surely cannot be in favour of the petitioner. Equally, he would submit that there is no irreparable injury which might be caused to the petitioner. Rather, after having failed to establish readiness and willingness, coupled with the fact that not a single penny has been paid, it would be the respondent which would incur irreparable loss and injury in case any interim order is passed in the present petition.

Learned counsel referred to and fully relied upon the judgement of the Supreme Court in Home Care Retail (supra) to contend that the present case does not meet the threshold of rare and compelling case. He further relied on the judgement rendered by the Bombay High Court in ONGC v. Swiber Offshore Construction Pte. Ltd, Comm. Arb. Pet. No. 17832/2026 dated 15.06.2026 where the Bombay High Court, after referring to the judgement in Home Care Retail (supra), refused to restrain the invocation of the bank guarantee on the premise that merely an arguable challenge by the unsuccessful party under Section 34 of the Act is not enough to grant protection under Section 9 and that the party must prove the existence of exceptional circumstances which are capable of justifying departure from the normal rule. Learned Counsel would submit that the Petitioner has failed to make out such circumstances in the present petition.

Learned Counsel would therefore submit that the prayers sought by the Petitioner may not be granted.

In rejoinder, Mr. Krishnan, learned senior counsel, took this Court through the amended Section 10 of the Specific Relief Act, 1963, also pointing out the substitution of Section 14(1)(a), and strenuously argued that specific performance is no longer a discretionary relief with effect from 01.10.2018, i.e. the date of the said amendment. He would rely on the judgement of the Supreme Court in B. Santoshamma v. D. Sarala, (2020) 19 SCC 80 and that of a Division Bench of this Court in Global Music Junction Pvt. Ltd. v. Shatrughan Kumar, (2023) SCC Online Del 5479 to contend that under the amended Section 10 of the Specific Relief Act, 1963, specific performance has to be enforced and monetary compensation is no longer a ground to deny the same.

The learned senior counsel would further distinguish the judgement in ONGC v. Swiber (supra) on facts while also contending that in the present case, the test of “a situation which cannot later be corrected even if the challenge succeeds” is clearly met, since the alienation of the subject properties would lead to situation where even if the petitioner succeeds in the challenge to the impugned Awards, the situation would have become irreversible.

Having heard the extensive arguments of Mr. Dayan Krishnan, learned senior counsel for the petitioner, Mr. Sahil Sethi, learned counsel for the respondent and perusing the records with the assistance of learned counsel and after examining the judgements relied upon, the following order is passed.

The controversy regarding an unsuccessful party seeking interim protection under the provisions of Section 9 of the Act, post the passing of the arbitral award is no more res integra. The Supreme Court in Home Care Retail (supra), speaking through His Lordship Justice Manmohan has eloquently and eruditely postulated various circumstances which may require to be examined by a Court considering a petition under Section 9 of the Act, invoked by an unsuccessful party. That an unsuccessful party to the arbitration proceedings is entitled to invoke Section 9 of the Act, is unambiguous. That the onus of such an unsuccessful party to establish, prima facie, the ingredients of the triple test, is at a higher pedestal, in the post award situation than at the pre award scenario, is manifest. In other words, the tests may have more rigors for the unsuccessful party. The Supreme Court also required the Courts to examine whether vacation of the protection post award would “result in irreversible prejudice”, in the sense to leave such a party remediless. The judgement also cautions that grant of protection orders in post award condition in favour of the unsuccessful party can only be considered in “rare and compelling circumstances”. That too, when passing of such orders are considered by the Court as would “prevent irreparable prejudice and preserve the efficacy of the challenge proceedings”. To make things unambiguous, the relevant paragraphs of Home Care Retail (supra) are extracted hereunder:

Apart from enunciating the guiding principles as to how and in what circumstances an unsuccessful party would be entitled to invoke the provisions of Section 9 of the Act, that too post the passing of the award, the Supreme Court has clearly postulated the scope and extent of power and the circumscription to such exercise. It is in these circumstances and bearing in mind the guiding principles postulated in Home Care Retail (supra) that this Court would proceed to examine this case.

Simply put, it is the case of the petitioner that it enjoyed the interim orders restraining the respondent from selling, alienating or creating third party rights qua the subject properties during the pendency of the arbitral proceedings. It is also the case of the petitioner that the claim being one of specific performance sans any claim for damages, in case the protection orders are not granted by this Court, the petitioner would be left remediless in case the respondent sells, alienates or creates any third party rights in the interregnum. It is also the case of the petitioner that the amended Specific Relief Act has substituted Section 14(1)(a) and now contemplates and envisages the grant of specific performance as the primordial objective of the said Act, unlike its erstwhile version. According to the petitioner, in the erstwhile regime, grant of specific performance was discretionary, tilting towards the alternate relief of damages. However, post amendment, the Specific Relief Act, 1963 mandates specific performance to foster consistency and purity in contracts.

Though, a challenge to the Arbitral Award dated 26.09.2026 has been laid after the filing of the present petition, it is the apprehension of the petitioner that if the respondent disposes of the subject properties in the interregnum, its petition under Section 34 of the Act would be clearly rendered infructuous inasmuch as, no relief other than specific performance of the ATSs has at all been sought by the petitioner.

The petitioner had also urged that the subject two properties are the only assets of the respondent, and no other. Thus, even if the petitioner were entitled to any compensation, the same would be rendered unexecutable. It was further urged that if the petition under Section 34 of the Act is allowed by this Court and further by virtue of the judgement of the Supreme Court in Gayatri Balasamy (supra), this Court eventually severs or sets aside the finding that the LSL was not a sham document and modifies the said Award, the petitioner may not be able to execute the same if in the interregnum, the only assets, i.e., the subject two properties are disposed off. Nothing will remain for execution.

It was the forceful submission of the petitioner that the learned Arbitral Tribunal had upheld the validity of the ATSs, though vehemently opposed and objected to by the respondent. In such circumstances, if the finding reached by the learned tribunal that the LSL is a “sham document” is severed, the petitioner may be entitled to an award of specific performance. He has argued that in case the aforesaid result could be envisaged, interim protection orders would be required to preserve the property.

It is trite that the learned Arbitral Tribunal is the master of facts and ordinarily Courts are circumspect in interfering with such findings of fact. (See: OPG Power Generation (supra),and Ssangyong Engineering (supra)) There are very rare exceptions to this principle. Thus, when a Court is examining the findings of fact, it is not in the nature of an appellate Court which may reappreciate, but is limited in its scope and width. The Supreme Court has delineated this scope and width in the following terms in Delhi Airport Metro Express (supra):

It must also be borne in mind that this Court is not considering a petition under section 34 but one under Section 9 of the Act. The question of examining the contended perversity or delving into the findings of fact, is limited only to the extent of a prima facie opinion alone. Whether the facts need elaborate examination or scrutiny of findings to opine that those are perverse to an extent warranting interference would arise only in the petition challenging an arbitral award.

That said, it may be relevant to also understand the extent and scope of interference by a Court while examining the facts and findings rendered thereon by the learned Arbitral Tribunal. As enunciated in Delhi Airport Metro Express (supra) above, one of such relevant considerations would be as to whether such conclusion is based on “no evidence”. It is trite that the learned Arbitral Tribunal is the master of findings of fact, however, a conclusion based on no evidence would be “perverse”. It is one thing to say that the learned Arbitral Tribunal has recorded a finding which may be plausible based on the evidence adduced by parties, but completely another thing to say that the finding is based on no evidence. It is only the latter circumstance which may warrant interference. The former circumstance is insulated and protected from any interference by a Civil Court. (See: Ssangyong Engineering (supra)). Thus, this Court is now required to examine if the arguments and contentions of the petitioner regarding challenge to the conclusion that the LSL is a sham document, is or is not based on “no evidence”.

The arguments of both the parties circumambulated only on the question as to whether the conclusion as a finding of fact that the sanction letter dated 07.07.2019 issued by the NBFC is a sham document, is based on no evidence at all. If the conclusion is borne out from the facts and the evidence adduced, the proscription from interference as enunciated by the Supreme Court in a catena of judgements would squarely apply. In case the said conclusion on facts is based on no evidence, then and then alone this Court may require to examine the dispute on facts.

It is relevant to note that the claim as laid by the petitioner before the learned Arbitral Tribunal was for specific performance of the ATSs dated 04.05.2019. It is not disputed that the petitioner did not, of its own, demonstrate or place on record, any document or evidence substantiating its own financial capacity/capability to pay the sale consideration to the respondent. The claim for specific performance was purely predicated on payment of the sale consideration by PFL. The documents in support of the said claim were (i) Registration Certificate of PFL with the RBI; and (ii) LSL dated 07.07.2019. Before this Court proceeds to examine the aforesaid issue, it may be relevant to extract hereunder both the aforesaid documents.

Undeniably, PFL is indeed registered with the RBI as an NBFC. This status was neither questioned nor any question put to the CW-2, who was the witness from PFL and had produced and placed on record these documents. The entire controversy revolved only around the LSL. As noted above, the said letter delineated material particulars which would, prima facie, indicate that PFL had committed itself to give loan against property. The amount of sanction, the tenure of the loan and the type of facility for the specific subject property was clearly delineated. So far as the rate of interest is concerned, it was indicated that the same would be applicable at the reference rate at the time of disbursal. It may be relevant to bear in mind that this particular sanction, though termed as LSL, was more in the nature of a loan against property rather than a simple home loan. The special conditions prescribed therein governed the manner in which the documentation, etc., were to be worked out between the parties.

Since the controversy revolves around the aforesaid document and the evidence furnished in support thereof, it would be apposite to extract hereunder the evidence by way of affidavit of CW-2:

A perusal of the affidavit, prima facie, indicates that the loan amount was to be disbursed vide a demand draft directly in the name of the respondent on the date of registration of the sale deed. Simultaneously, the original documents of the said property were also to be handed over to PFL. CW-2 brought on record and exhibited LSL as Exh. CW-2/3. The witness affirmatively asserted that PFL is still willing to perform its obligations and disburse the loan amount. This examination-in-chief of CW-2 was put to test through cross-examination conducted by the respondent.

Though at this stage, and particularly in proceedings under the provisions of Section 9 of the Act, this Court is not required to delve into oral evidence or the cross-examination, however, keeping in view the piquant situation based whereon the petition has been filed and contested, it becomes the bounden duty of this Court to satisfy itself, at this prima facie stage as to whether any lacunae which may be alleged to be perversity or findings based on no evidence, have any merits at all. Thus, it would be in the fitness of things to extract the entire cross-examination, as hereunder:

So far as the fact that PFL is registered as NBFC, the witness has affirmed the same. To the question of asset size, the witness has affirmed PFL to have a net worth of Rs.200 Crores. The witness also appears to have withstood, prima facie, questions regarding inspection of the property as also the valuation done of the said property. The question regarding sanction of the loan based on photocopies of the title deeds coupled with physical inspection does not negate the stand taken by the witness inasmuch as admittedly the respondent did not have in its own possession, the original documents. Substantial questions regarding the LSL and its contents were put to the CW-2. However, on a holistic examination and scrutiny of the cross-examination and the responses elicited, do not appear to, in the humble view of this Court, prima facie, discredit the LSL by itself. In other words, whether right or wrong, CW-2 appears to have answered all questions relating to the Sanction Letter. Unlike a Court considering a petition under Section 34 of the Act, at this stage, this Court is not required to evaluate the ultimate effect of the cross-examination.

Before this Court renders any opinion, it may be relevant to appreciate the reasoning as to how the learned Arbitral Tribunal has concluded that the LSL is a sham document. The relevant paragraphs are extracted hereunder:

The learned Arbitral Tribunal in its wisdom indeed has evaluated the evidence threadbare and finally opined on the basis of such reasoning that the LSL is a sham document. In particular, learnedArbitral Tribunal, in para 87 has observed that (i) the rate of interest; (ii) manner of repayment; and (iii) documents required for disbursing the loan are not stated in the LSL. As observed above, the three ingredients find a general mention in the LSL coupled with the fact that CW-2 in his affidavit has affirmed not only the sanction of loan against the property but also the manner in which the disbursal would be completed. It may be noticed that the LSL is a document which accords in-principle approval of the loan and is not the loan agreement itself. A holistic and harmonious appraisal of the cross-examination demonstrates that no question regarding the authenticity, genuineness or veracity of the said LSL was ever put to CW-2 either by the respondent or even by the learned Arbitral Tribunal itself, though certain questions indeed were put by the learned Arbitral Tribunal. Primarily, all the questions that were put to the witness were indeed answered, however, not a single question doubting the authenticity or genuineness of the LSL were at all put to the witness.

It is trite that when a witness is produced for cross-examination, questions regarding not only the integrity of the witness himself to discredit his testimony can be put, but also penetrating questions regarding the validity of the document itself can and ought to be put so as to discredit the document itself. To that extent, prima facie, this Court is unable to satisfy itself that the conclusion that the LSL is a “sham document”, as observed in para 96 of the Arbitral Award, is based on any evidence at all. This is not a case where it is ex facie or prima facie apparent that LSL is a sham document or fabricated. The fact that PFL is a registered NBFC has neither been disputed nor doubted by the respondent. The fact that PFL has net worth of Rs.200 Crore has also not been discredited. In a case of specific performance, the claimant is only required to show readiness and willingness in some form or the other, i.e., whether by its own financial capacities or that of a bank or an NBFC or any other sound financial entity. Thus, the genuineness of the source of the LSL or the authenticity of the intent behind such issuance has neither been questioned nor discredited.

Whether PFL is capable of extending a loan; whether the validity of the LSL can be extended by PFL; whether PFL would indeed disburse the sale consideration simultaneous with the registration of the sale deed, etc., by themselves, have no remote connection with the nature or genuineness of the LSL itself.

Learned counsel for the respondent had argued, and rightly so, that the onus to prove readiness and willingness is squarely on the claimant and not of the respondent. However, as to whether the LSL by itself is a sham document once having been produced by a witness of the PFL which issued the LSL, the onus to demonstrate or prove that the said LSL is a “sham document” would surely be that of the respondent. No questions doubting the credibility of the LSL itself were at all put to CW-2.

It is in the aforesaid circumstances alone, this Court humbly observes that the conclusion in para 96 of the Arbitral Award that the LSL is a “sham document” is merely inferential however, based on no evidence at all. The mere questions surrounding the recitals in the documents by itself would not, ipso facto, lead any prudent person to conclude that the LSL is a sham document. It may be significant to note, of course, prima facie, that not even a single suggestion that the LSL is either forged or fabricated or a sham document was ever put to the witness. It is well nigh possible, that had such a question been put, the witness would have surely given an answer and depending on such response, the learned Arbitral Tribunal then could have concluded one way or the other. That not having been done, this Court finds no evidence on basis whereof the conclusion was recorded in para 96 by the learned Arbitral Tribunal that the LSL is a sham document.

Having noted the above, this Court is now enjoined to examine as to whether the facts which have arisen in the present case would commend themselves as “rare and compelling” so as to pass any interim protection orders in favour of the petitioner. Undoubtedly, the threshold for grant of interim relief is higher in case of an unsuccessful party in the arbitration proceedings. This flows from the judgement in Home Care Retail (supra). At the same time, while laying down the aforesaid proposition, the Supreme Court, in Home Care Retail (supra), guided the court exercising powers under Section 9 to invoke the said provision to “prevent irreparable prejudice and preserve the efficacy of the challenge proceedings.” So much so, that the Supreme Court also laid down that the rights of such a party cannot be curtailed merely on the apprehension of possible misuse of a statutory provision. It is these principles which ought to guide a court exercising powers under Section 9 invoked by an unsuccessful party.

That the petitioner has instituted a petition under Section 34 of the Act challenging the Arbitral Award dated 26.09.2026 is by itself, not a “rare and compelling” circumstance. That the petitioner has filed the present petition under Section 9 seeking interim directions, too by itself, is also not a “rare and compelling” circumstance. Such action may be initiated by an unsuccessful party under most circumstances and is not a rarity. Thus, what are the rare and compelling circumstances tempered with prevention of irreparable prejudice and preservation of the efficacy of the challenge proceedings, is to be examined.

To the submission of the petitioner that the respondent has no asset other than the subject two properties, there has neither been any denial nor controversy. That the claim of the petitioner is only with respect to specific performance of the ATSs dated 04.05.2019 and no claim for damages in the alternate have been claimed, is also not in dispute. That the interim orders of protection were granted by the learned Arbitral Tribunal and continued till the passing of the Award, is also borne from the record and not in dispute.

Significantly, the amendment of Specific Relief Act, 1963 (hereinafter referred to as the ‘SRA’) by substitution of Section 10 with the new Section has clearly taken away the discretion which was vested with the Court to grant or refuse specific performance. In other words, grant of specific performance is a mandate, subject to the provisions contained in sub-section (2) of Section 11, Section 14 and Section 16 of the SRA. It is noted that the erstwhile Section 14(1)(a) of the SRA, stipulated that a contract would not be specifically enforceable where non-performance of the same can be compensated in money as an adequate relief. The said erstwhile section 14(1)(a) of SRA has been substituted by the Amending Act, 2018 whereby the proscription from specific performance, if compensation in money could be an adequate relief, has been removed. These amendments were brought into force with effect from 01.10.2018 which is prior to the execution of the subject ATSs and thus applies with full rigour. Thus, the discretion having been taken away, specific performance of a contract appears to be mandatory subject to fulfilment of certain provisions of the SRA. (See: paras 69 and 70 of B. Santoshamma(supra)) The said proposition has been reiterated and elucidated upon by a Division Bench of this Court in Global Music Junction (supra). The relevant paragraphs are extracted hereunder:

(emphasis supplied)

Reading the facts alongwith the amendments to SRA, it appears that in case the petitioner is able to demonstrate that the conclusion of LSL as a sham document is based on no evidence and the said document itself is held to be a valid and creditworthy document, it would be able to establish its “readiness and willingness” which is a necessary concomitant of Section 16(c) of the SRA. This is all the more relevant as the discretion which was hereto before available with the Court having been taken away, instead, specific performance having been mandated read with the omission/substitution of erstwhile Section 14(1)(a) SRA and tempered with the analysis made hereinabove, could be a “compelling” circumstance to prevent not only “irreparable prejudice” but also at the same time, “preserve the efficacy of the challenge proceedings” under Section 34 of the Act.

Another compelling and rare circumstance appears to be that of the respondent having no other properties/assets other than the two subject properties which, if not preserved, may render the proceedings under Section 34 of the Act redundant and infructuous. As observed above, the mere filing of a petition under Section 34 itself is neither rare nor compelling, however, read with the aforesaid observations and analysis, coupled with the dicta of the Supreme Court, interim orders to ensure preservation of the efficacy of the challenge, in the present piquant facts, may have to be passed.

Home Care Retail (supra) had clearly enunciated that mere apprehension of a possible misuse of a statutory provision ought not to curtail the right of an unsuccessful party to seek interim protection orders. The facts obtained in the present case commend and align themselves with the said principle/proposition, in the humble opinion of this Court.

In the opinion of this Court, prima facie, the petitioner has been able to demonstrate a rare and compelling case coupled with establishing a strong case in its favour on a higher pedestal than in ordinary circumstances. The cumulative analysis and observations noted above clearly tilt the balance in favour of the petitioner inasmuch as not only are the circumstances rare and compelling but the efficacy of challenge under Section 34 of the Act would also be rendered nugatory if the subject properties are not preserved. Clearly prejudice would be caused to the petitioner in case restraint orders are not passed inasmuch as not only would the petitioner be put to irreparable loss but also that the petitioner cannot be compensated in monetary terms in view of the amended provisions of the SRA.

Thus, this Court is inclined to pass interim protective orders in favour of the petitioner.

A large number of judgements were cited by both the parties in favour and in support of their contentions and submissions. Since this Court has prima facie come to a conclusion that the finding recorded by the learned Arbitral Tribunal in para 96 of its Award is based on no evidence, the judgements relied upon by the respondent regarding non-interference in arbitral awards, particularly in respect of findings rendered on fact may not be fully applicable to the present case. The guiding principles enunciated by the Supreme Court in Home Care Retail (supra), in the humble opinion of this Court clearly cover the facts of the present case, and thus, the other judgements, though there is no quarrel to such propositions, may also not be applicable to the facts of the present case.

The respondent had relied upon the judgement of the Supreme Court in Ritu Saxena (supra) to contend that mere approval of loan by the bank or NBFC, as in the present case, would not tantamount to readiness and willingness and thus, reliance on LSL is insufficient to seek specific performance of the ATS. The facts in Ritu Saxena (supra) appear to be different from those obtained in the present case. In Ritu Saxena (supra), the appellant/plaintiff asserted readiness and willingness based on her own financial capacity coupled with the approval of loan by ICICI Bank. Finding that the appellant/plaintiff could not establish her or her husband’s independent financial capacity, the Supreme Court held that the mere approval of the loan was insufficient to prove “readiness and willingness”. While in the present case, the petitioner’s case of readiness and willingness is completely hinged on the LSL coupled with the assertion of CW-2 in the witness box that PFL is ready and willing to pay the entire sale consideration. There was no assertion at all that the petitioner is having the financial capacity to pay the sale consideration. It is in this context that the LSL needs to be appreciated. Thus, on facts, the cases appear to be distinguishable.

Resultantly, the respondent is restrained from selling, alienating, creating any third-party rights or any encumbrances of whatsoever nature in the subject properties till the next date of listing.

The respondent is permitted to file its reply within three weeks from date.

Rejoinder thereto, if any, be filed within two weeks thereafter.

The respondent is permitted to file its reply within three weeks from date.

Rejoinder thereto, if any, be filed within two weeks thereafter.

List on 02.12.2026 alongwith O.M.P. (COMM) 471/2026 and O.M.P. (COMM) 472/2026.