Bombay High Court
IIFL FINANCE LIMITEDversusORCHID FACILITY MANAGEMENT PRIVATE LTD
- Decided
- Disposal
- DISPOSED OFF
Holding
The court held that the petitioner had made out a prima facie case and granted appropriate interim protection under Section 9 of the Arbitration and Conciliation Act, 1996.
Summary
IIFL Finance Ltd., the petitioner, granted a Rs 20 lakh SME business loan to Orchid Facility Management Pvt Ltd, which defaulted on repayments. The petitioner issued a loan recall notice demanding full repayment of Rs 17,53,498.98 and alleged that the respondents were attempting to transfer or dispose of assets to evade payment. A petition under Section 9 of the Arbitration and Conciliation Act, 1996 was filed for interim protection, and the respondents, though properly served, failed to appear or disclose their assets as ordered. The court examined the documents, the respondents' non‑compliance, and the Supreme Court’s guidance in Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel (India) Ltd., concluding that a prima facie case existed and that interim relief was necessary to preserve the subject‑matter of arbitration. Accordingly, the court partially allowed the petition, ordering the freezing of a specific bank account of the respondents up to the claimed amount and directing the petitioner to constitute an arbitral tribunal within 90 days, with the petition thereafter disposed.
Issues considered
- Whether the petitioner is entitled to interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 in view of the respondents' default and alleged asset disposition.
- Whether the court may attach or freeze the respondents' bank accounts despite their absence and non‑compliance with the asset‑disclosure order.
- Whether a prima facie case is established without direct evidence of asset transfer.
Legislation cited
Subjects
- Arbitration
- Section 9
- Interim relief
- Loan default
- Asset attachment
- Non‑compliance
- Prima facie case
- Enforcement
Judgment
62-arbp-125-2026.doc
Vivekanand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by
ORDINARY ORIGINAL CIVIL JURISDICTION
VIVEKANAND
VIVEKANAND RAJENDRA
RAJENDRA BONDE
BONDE Date:
2026.09.30
18:27:08 +0530 ARBITRATION PETITION NO. 125 OF 2026
IIFL Finance Limited … Petitioner
V/s.
Orchid Facility Management Private Ltd
& Ors. … Respondents
Ms. Pooja Singh a/w Mr. Shrutika Patil, for the
Petitioner.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 30, 2026
P.C.:
1. Since the Respondent appeared through an Advocate on 5
August 2026 and thereafter on 2 September 2026, this Court
directed to the Respondent to disclose their properties in terms of
prayer Clause (b).
2. Notice of the said order was issued to the Respondent, which
has been returned with remark “Unclaimed”. In the facts of the
case, the said service is, therefore, treated as valid service.
3. Hence, following order is passed:
4. The Petitioner has filed this Petition under Section 9 of the
Arbitration and Conciliation Act, 1996. According to the Petitioner,
the SME Business Loan Agreement signed between the parties
contains Clause 20, which provides for arbitration. On that basis,
the Petitioner has approached this Court and has asked for ad
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interim and interim protection pending the arbitration
proceedings.
5. The case of the Petitioner is that on 19 July 2023, the
Respondents approached the Petitioner and applied for financial
help by submitting a loan application for a business loan. After
considering the request, the Petitioner sanctioned SME Business of
Rs.20,00,000/-. Thereafter, on 19 July 2023, both sides executed
the Loan Agreement and the loan amount was made available to
the Respondents. It is the Petitioner's case that after taking the
loan, the Respondents did not pay the instalments as agreed.
According to the Petitioner, the Respondents failed to maintain
financial discipline and acted in breach of the terms and conditions
of the Loan Agreement. The Petitioner has further stated that
because of continuous default, a Loan Recall Notice dated 22 April
2025 was issued in respect of Loan Account. By the said notice, the
Respondents were called upon to repay the entire outstanding
amount within seven days. The Petitioner claimed an amount of
Rs. 17,53,498.98/- as on 14 April 2025 together with future
interest till payment or realisation, as provided under the Loan
Agreement. According to the Petitioner, even after the recall notice
was issued, the Respondents neither replied nor cleared the
outstanding dues. The Petitioner has therefore contended that the
Respondents have failed to repay the recalled loan amount and
continue to remain indebted. According to the Petitioner, it is
entitled to recover the outstanding amount in terms of the Loan
Agreement. The Petitioner has further alleged that it has learnt
that the Respondents have started taking steps to dispose of or
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transfer their assets with the intention of defeating the Petitioner's
claim and preventing recovery of the outstanding dues. On these
allegations, the present Petition has been filed seeking interim
protection from this Court.
6. Learned Advocate for the Petitioner submitted that the
Respondents were granted a business loan facility but committed
default in repayment of the loan. It is submitted that even after
receipt of the Loan Recall Notice, the Respondents failed to repay
the outstanding amount. Learned counsel further submitted that
the Respondents have neither filed any reply to oppose the present
Petition nor remained present before this Court despite due
service. It is also submitted that this Court had earlier directed the
Respondents to disclose their assets and other financial particulars,
but the said order has not been complied with. On these grounds,
it is contended that the Petitioner has made out a prima facie case
and is entitled to the interim reliefs as prayed for in the Petition.
REASONS AND ANALYSIS:
7. I have carefully seen the record and also considered the
submissions made by learned Advocate for the Petitioner. Though
Respondents are properly served, nobody has come before this
Court. They have also not filed any reply for denying the case in
the Petition. Earlier, this Court also passed order asking the
Respondents to give details of their movable and immovable
properties and other financial matters. Even that order is not
followed till today. Therefore, this Court has to consider the
present Petition from the documents produced by the Petitioner
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and the law relating to grant of interim protection under Section 9
of the Arbitration and Conciliation Act, 1996.
8. The first submission of the Petitioner is that both sides
entered into one Business Loan Agreement containing an
arbitration clause. Under that agreement, the Petitioner gave SME
business loan of Rs. 20,00,000/- to the Respondents. It is further
submitted that after taking the loan amount, the Respondents did
not pay the instalments as agreed and committed default. Because
of this default, the Petitioner issued one Loan Recall Notice asking
the Respondents to pay the entire outstanding amount. According
to the Petitioner, even after receiving the said notice, the
Respondents did not clear the dues.
9. From the documents filed along with the Petition, it appears
that the Loan Agreement and Loan Recall Notice are on record. At
this stage, nothing is brought before this Court to show that these
documents are false or they are not connected with the transaction
between the parties. Since the Respondents have remained absent,
there is also no dispute raised regarding execution of the Loan
Agreement, giving of the loan amount, default in repayment or
issuing of the Loan Recall Notice. Therefore, only for deciding this
request for interim protection, the documents produced by the
Petitioner are sufficient to show a prima facie case that some
amount has become due and payable under the Loan Agreement.
This finding is only for the present purpose and it shall not decide
the rights of the parties before the Arbitral Tribunal.
10. The next submission of the Petitioner is that even after
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issuance of the Loan Recall Notice, the Respondents have not paid
the outstanding amount. According to the Petitioner, this conduct
shows that the Respondents are trying to avoid payment of the
amount payable under the agreement.
11. It is true that only because a loan amount is not repaid, it
does not mean that every interim relief under Section 9 must be
granted. A money claim and a case requiring immediate protection
are not always of the same nature. Therefore, this submission may
not be enough for granting every relief asked in the Petition. Still,
this circumstance supports the Petitioner's case that there is a
money dispute between the parties and, if facts require, such claim
may need protection.
12. The Petitioner has then submitted that it has received
information that the Respondents have started selling, transferring
or otherwise dealing with their properties so that recovery of the
outstanding amount may become difficult. Such allegation is made
in the Petition. Normally, if the other side denies such allegation,
the Court has to examine the surrounding facts more carefully. But
in the present matter, no reply is filed. The Respondents have not
given any explanation denying these allegations. Mere absence of
denial cannot make every allegation proved. Still, because there is
no opposite case placed before this Court, the Petitioner's case is
required to be examined on the available material.
13. Learned Advocate for the Petitioner has also relied upon the
conduct of the Respondents after filing of the present Petition. It is
submitted that though the Respondents were served, they have not
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remained present before this Court. More importantly, this Court
had directed the Respondents to disclose details of their movable
and immovable properties and other financial particulars. That
direction was issued so that this Court could see whether any
interim protection was necessary. Even that order has not been
complied with.
14. When this Court passes an order, parties are expected to
follow the same unless there is some legal reason. If one party
remains absent and also does not disclose its assets despite
direction of the Court, such conduct can be taken into
consideration while deciding an application under Section 9. This
conduct alone may not prove dishonest intention. Even then, it
creates a reasonable apprehension that if no interim protection is
granted now, then even if the Petitioner succeeds in arbitration,
enforcement of the award may become difficult later.
15. The judgment of the Supreme Court in Essar House (P) Ltd.
v. Arcellor Mittal Nippon Steel (India) Ltd ., (2022) 20 SCC 178
holds that while deciding a petition under Section 9, the Court has
to keep in mind the basic principles of the Code of Civil Procedure.
At the same time, every technical provision of the Code need not
be applied strictly. The object of Section 9 is to protect the subject
matter of arbitration and to ensure that justice is not defeated. The
Supreme Court has further held that Section 9 gives wide powers
to the Court for securing the amount in dispute. While considering
such application, the Court has to see whether the applicant has
made out a good prima facie case, whether the balance of
convenience is in favour of interim protection and whether the
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applicant has approached the Court without unnecessary delay.
The Supreme Court has also clarified that interim relief cannot be
refused only because the pleadings do not satisfy every technical
requirement relating to attachment before judgment under the
Code of Civil Procedure. The Supreme Court has also observed
that in every case the applicant is not required to prove actual
transfer or disposal of assets. If the material before the Court
shows a strong possibility that the assets may become unavailable
or that the arbitral award may become difficult to enforce,
appropriate interim protection can still be granted. Therefore, the
Court has to see the overall circumstances of the matter and need
not insist upon direct proof of every intended transfer.
16. Keeping these principles in mind, this Court finds that the
Petitioner has produced the Loan Agreement, the Loan Recall
Notice and the statement showing the outstanding dues. No reply
has been filed disputing these documents. The Respondents have
not denied the transaction or their liability before this Court. More
importantly, after service of the Petition, they remained absent and
also failed to comply with the order directing disclosure of their
assets. This conduct makes the present matter different from an
ordinary money recovery case where the defendant appears and
contests the claim.
17. It is true that the Petitioner has not produced direct evidence
showing that the Respondents have transferred their properties. If
this circumstance is considered, the material may appear
insufficient. However, the law declared by the Supreme Court
holds that proof of completed alienation is not necessary in every
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matter. This Court has to see all surrounding circumstances
together. Continuous default in repayment, absence before this
Court, failure to file reply and non-compliance with the order
directing disclosure of assets together create a reasonable
apprehension that if interim protection is not granted, the
Petitioner's claim may finally remain unsecured.
18. Therefore, the submission of the Petitioner that interim
protection is necessary deserves acceptance. At the same time, only
because the Petition is not contested, every prayer made in the
Petition cannot be granted. The relief granted should be only to
the extent necessary for protecting the arbitral proceedings and
securing the amount in dispute. The order of this Court should
protect the Petitioner's claim without going beyond what is
necessary at this stage.
19. After considering the pleadings, documents placed on record,
conduct of the Respondents and the principles laid down by the
Supreme Court in Essar House (P) Ltd., this Court is satisfied that
the Petitioner has made out a good prima facie case. The balance
of convenience is also in favour of the Petitioner. If interim
protection is not granted, there is reasonable possibility that the
arbitration proceedings may become ineffective and the award, if
ultimately passed in favour of the Petitioner, may become difficult
to enforce. On the other hand, if suitable interim protection is
granted at this stage, it will only preserve the subject matter and
secure the Petitioner's claim till the disputes are finally decided in
arbitration. Therefore, this Court holds that the Petitioner has
made out a case for grant of appropriate interim protection under
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Section 9 of the Arbitration and Conciliation Act, 1996.
20. In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) The Arbitration Petition is partly allowed in terms of
prayer clause (a);
“(a) Attach/ Freeze the below-mentioned bank account/s
and other bank accounts of the respondents, which are not
brought to the knowledge of the petitioner company, to the
extent of Rs. 17,53,498.98/- (Rupees Seventeen Lakh(s)
Fifty Three Thousand Four Hundred Ninety Eight And Paise
Ninety Eight Only) and restrain the respondents from
withdrawing and/or transferring the funds from the
following below-mentioned bank accounts:
Bank Account Bank Account Bank Branch Address
Holder No. Name
Orchid 6127314692 Indian Durgabazar Cuttack
Facility Bank Machhagaon Road
Management Jagatsinghpur
Pvt. Ltd. PO Jagatsinghpur
Pin 754 103
IFSC Code: IDIB000J038
(ii) The observations made in this order are prima facie in
nature and confined only to the consideration of the present
application under Section 9 of the Arbitration and
Conciliation Act, 1996. The Arbitral Tribunal shall decide the
disputes independently and on their own merits without
being influenced by any observations contained in this order;
(iii) The Petitioner shall initiate steps to constitute arbitral
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tribunal within a period of 90 days from today.
(iv) The Petition is accordingly disposed of. There shall be
no order as to costs.
(AMIT BORKAR, J.)
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