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He relied upon the judgment of the Apex Court in the matter of Bharat Aluminium Co. V/s. Kaiser Aluminium Technical Service, Inc. 1, which 1 (2012) 9 SCC 552 is popularly known as BALCO judgment. Mr. Ramabhadran submitted that the Apex Court has reiterated the position as it was, as a matter of law an inter parte suit simply for interim reliefs pending arbitration even if it be limited for the purpose of restraining dissipation of assets or for security is not maintainable. He submitted that the Apex Court has held that fundamental to the maintainability of the civil suit is the existence of the cause of action in favour of the plaintiff and this is evident from the various proceedings contained in Civil Procedure Code especially in Order VII and Order II. He also submitted that the Apex Court has in the BALCO judgment (supra) held that pendency of the arbitration proceedings outside India would not provide a cause of action for a suit where the main prayer is for injunction. In such a suit, right to claim could possibly arise only if the future arbitration award could possibly be in favour of the plaintiff and no suit for interim security could obviously be filed based purely on such contingency. Such an interlocutory order for security can only be granted during the pendency of the civil suit claiming a relief which is likely to result in a final decree upon the subject which is in dispute. He also submitted that since the dispute is to be decided by the arbitrator no substantive relief concerning the merits of the arbitration could be claimed in the suit and the plaintiff's only claim would depend upon the outcome of the arbitration proceedings in a foreign country over which the Courts in India would have no jurisdiction. Therefore, the cause of action would clearly be contingent/ speculative and as held by the Apex Court, in such situations, there would be no existing cause of action and the plaint itself would be liable to be rejected under Order 7 Rule 11(a) of Civil Procedure Code. He submitted that the Apex Court has held that a right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. Mr. Ramabhadran further submitted if the plaint itself is liable to be rejected, the question of this Court even deciding on the issue as to whether bunkers on board a vessel, independent of the vessel, can be arrested or not need not be even gone into. That would mean the entire order of arrest that the plaintiff obtained itself is wrongful and, hence, the Court should reject the present Notice of Motion and proceed to hear Notice of Motion no.735/2013.

175. In our opinion, pendency of the arbitration proceedings outside India would not provide a cause of action for a suit where the main prayer is for injunction. Mr. Sundaram has rightly pointed out that the entire suit would be based on the pendency of arbitration proceedings in a foreign country. Therefore, it would not be open to a party to file a suit touching on the merits of the arbitration. If such a suit was to be filed, it would in all probabilities be stayed in view of Sections 8 and 45 of the Arbitration Act, 1996. It must also be noticed that such a suit, if at all, can only be framed as a suit to "inter alia restrain the defendant from parting with property." Now, if the right to such property could possibly arise, only if the future arbitration award could possibly be in favour of the plaintiff, no suit for a declaration could obviously be filed, based purely only on such a contingency. All that could then be filed would, therefore, be a bare suit for injunction restraining the other party from parting with property. The interlocutory relief would also be identical. In our view, such a suit would not be maintainable, because an interlocutory injunction can only be granted during the pendency of a civil suit claiming a relief which is likely to result in a final decision upon the subject in dispute . The suit would be maintainable only on the existence of a cause of action, which would entitle the plaintiff for the substantive relief claimed in the suit. The interim injunction itself must be a part of the substantive relief to which the plaintiff's cause of action entitled him.

Consequently there could be no Mareva injunction. It was held that a Mareva injunction was merely an interlocutory injunction and such an injunction could only be granted as ".... ancillary and incidental to the pre- existing cause of action".

181. Lord Diplock observed that: (Siskina case16, AC p. 255 D) ".... it is conceded that the cargo owners' claim for damages for breach of contract does not of itself fall within any of the sub-rules of Order 11, Rule 1(1); nor does their claim for damages for tort."

182. Interpreting Order 11 Rule 1(1)(i), it was held in Siskina case16 that the word used in sub-rule (i) are terms of legal art. The sub-rule speaks of "the action" in which a particular kind of relief, "an injunction" is sought. This pre-

supposes the existence of a cause of action on which to found "the action". A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the Court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the Court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction.