Karnataka High Court
Vlcc Health Care Ltd vs Y Divakar on 16 March, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.21987 OF 2022 (GM - RES)
BETWEEN:
V.L.C.C. HEALTH CARE LTD.,
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF
THE COMPANIES ACT, 2013
WITH ITS REGISTERED OFFICE AT
M-14, GREATER KAILASH-II
COMMERCIAL COMPLEX
NEW DELHI - 110 048
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR. MANJU C.
... PETITIONER
(BY SRI UDAY SHANKAR R.M., ADVOCATE)
AND:
1. Y. DIVAKAR
SON OF MR.V.YELLEGOUDA
AGED ABOUT 55 YEARS.
2. SUNITA DIVAKAR
WIFE OF MR.Y.DIVAKAR
AGED ABOUT 54 YEARS.
BOTH WORKING FOR GAIN AT
2
M/S SUN DESIGNERS
NO.19, SUN EDIFICE, 20TH MAIN
WEST OF CHORD ROAD
1ST R BLOCK
RAJAJINAGAR
BENGALURU - 560 010.
3. MR. VISHWANATH V. ANGADI
ARBITRAL TRIBUNAL AND SOLE ARBITRATOR
THE ARBITRATION AND CONCILIATION CENTRE
(DOMESTIC AND INTERNATIONAL)
KHANIJA BHAVAN, NO.49
3RD FLOOR, EAST WING
RACE COURSE ROAD
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI K.ARVIND KAMATH, SR.ADVOCATE A/W
SRI PRASHANT POPAT, C/R-1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DTD 14.10.2022 PASSED BY THE HONBLE LXXXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU,
COMMERCIAL COURT CCH NO.83 IN A.P.NO.78/2022 PRODUCED
AT ANNEXURE-A CONSEQUENTLY PERMITTING THE PETITIONER
HEREIN TO FURNISH SECURITY BY WAY OF CASH OF
RS.40,00,000/- (RUPEES FORTY LAKH ONLY) AND A BANK
GUARANTEE FOR A SUM OF RS.1,31,64,668.62/- (RUPEES ONE
CRORE, THIRTY ONE LAKH, SIXTY FOUR THOUSAND, SIX HUNDRED
AND SIXTY EIGHT AND SIXTY TWO PAISE ONLY) AND ETC.,
3
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner/V.L.C.C.Health Care Limited ('the Company for short) is knocking at the doors of this Court calling in question order dated 14-10-2022 passed by the LXXXII Additional City Civil and Sessions Judge at Bengaluru/Commercial Court in A.P.No.78 of 2022 whereby the concerned Court declines the application filed by the petitioner for deposit of `40,00,000/- by way of cash and `1,31,64,668.62 by way of Bank guarantee.
2. Heard Sri R.M. Uday Shankar, learned counsel appearing for the petitioner and Sri K. Arvind Kamath, learned senior counsel appearing for respondents 1 and 2.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The petitioner and respondents 1 and 2 enter into a lease agreement in respect of property owned by respondents 1 and 2 and the petitioner is a lessee. Certain dispute arose between the 4 two with regard to payment of rent during the period when Globe was engulfed with Covid-19 resulting in dispossession of the petitioner from the premises. On the dispute so generated between the parties, in terms of the agreement, the 3rd respondent was appointed as an Arbitrator to adjudicate upon the dispute. The Arbitrator in terms of his award dated 29-12-2021 allowed the claim of respondents 1 and 2 and directed payment of cash in lieu of rent, maintenance and mesne profits along with other charges claimed by respondents 1 and 2 and rejected counter claim of the petitioner in terms of his order dated 18-02-2022. Therefore, the final award is concerning allowing the claim of respondents 1 and 2 and rejecting the counter claim of the petitioner.
4. The petitioner then prefers a petition under Section 34 of the Arbitration and Conciliation Act, 1996 ('the Act' for short) on 23-05-2022 challenging the Arbitral Award in A.P.No.63 of 2022 which was initially filed before the Civil Court. The respondents on 30-06-2022, during the pendency of the aforesaid proceedings, prefer a Commercial Execution Petition in Commercial Execution No.295 of 2022 before the Commercial Court seeking to execute 5 the arbitral award that was passed against the petitioner. The execution petition comes up before the Court on 01-07-2022 and an order of attachment of movables of the petitioner was passed. The petitioner claims to be ignorant of the order passed in the execution case and had come to know of it only when the Bailiff of the Court enters the premises of the petitioner at Jayanagar seeking to execute the order. It is then, the petitioner claims to have approached the executing Court seeking recall of the warrant of attachment by filing an application under Order XXI Rule 26 of the CPC. The petitioner also sought stay of complete execution proceedings for a period of six weeks to enable it to challenge the execution proceedings. It is later both the proceedings, pending before the Court in A.P.No.63 of 2022 and the execution petition, were taken up together by a transfer of proceedings before the Commercial Court. Thereafter, A.P.No.63 of 2022 was re-numbered as A.P.No.78 of 2022. In those proceedings, the petitioner prefers an application under Section 36(2) and (3) of the Act seeking stay of operation of arbitral award dated 29-12-2021. As required in law, the Court is empowered to demand deposit of award amount while entertaining an application seeking stay of arbitral award. 6 The arbitral amount in the case at hand was close to `1,72,00,000/- The petitioner offered that `40,00,000/- would be deposited by way of cash and the remainder of the amount by way of bank guarantee which would act as sufficient security for the entire sum in the execution proceedings. The concerned Court owing to the objections filed by respondents 1 and 2 directed 100% deposit of the amount within 30 days from the date of the order failing which, the interim order of stay that was granted would automatically get vacated. It is this order that drives the petitioner to this court in the subject petition.
5. The learned counsel appearing for the petitioner would contend with vehemence that what is necessary is security to the amount awarded in the arbitration proceedings. The petitioner did offer deposit of `40,00,000/- by cash and the remaining amount by way of bank guarantee which would undoubtedly form the security as required in law. He would contend that the proceedings before the Commercial Court cannot be in ignorance of the CPC. He would contend that the petitioner be permitted to deposit as was sought 7 for before the concerned Court i.e., `40,00,000/- by way of cash and `1,31,64,668.62 by way of bank guarantee.
6. On the other hand, the learned senior counsel representing respondents 1 and 2 would refute the submissions to contend that in terms of Section 36(2) and (3) of the Act the operation and execution of arbitral award can be stayed subject to deposit of the entire amount. The Court, in its discretion, is empowered to do so and it is the practice of Courts throughout that 100% deposit is demanded at the time when a challenge is raised to the arbitral award. He would seek to place reliance upon the judgment of the Apex Court in the case of SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION v. POWER MECH PROJECTS LIMITED - (2022) SCC OnLine SC 1243, orders of the Apex Court in TOYO ENGINEERING CORPORATIOIN AND ANOTHER v. INDIAN OIL CORPORATION LIMITED - Civil Appeal Nos. 4549- 4550 of 2021 decided on 02-08-2021 and order in MANISH v. GODAWARI MARATHAWADA IRRIGATION DEVELOPMENT CORPORATION - Special Leave Appeal Nos. 11760-11761 of 2018 decided on 16.07.2018. The aforesaid judgments are relied on by 8 the learned senior counsel to buttress his submission that Section 36 makes it mandatory for deposit of entire amount. The discretion available to the concerned Court is only with regard to the manner and mode of security to be provided by the award debtor.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are all a matter of record and do not call for reiteration. The issue lies in a narrow compass as the petitioner is before this Court in an order passed on an interlocutory application with regard to the manner in which the deposit can be made before the concerned Court while raising a challenge to the arbitral award under Section 34 of the Act. It becomes germane to notice certain provisions of the Act. Section 36 of the Act reads as follows:
"36. Enforcement.--(1) Where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.9
(2) Where an application to set aside the arbitral award has been filed in the court under Section 34, the filing of such an application shall not by itself render that award unenforceable, unless the court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.
(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:
Provided that the court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908):
Provided further that where the Court is satisfied that a prima facie case is made out that,--
(a) the arbitration agreement or contract which is the basis of the award; or
(b) the making of the award, was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 to the award.
Explanation.--For the removal of doubts, it is hereby clarified that the above proviso shall apply to all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015."
Section 36 of the Act deals with enforcement of awards, which is a provision akin to execution proceedings under the CPC. Section 34 10 empowers an award debtor to file an application seeking to set aside an arbitral award. Therefore, Section 34 empowers the award debtor to challenge the arbitral award and Section 36 awardee seeks execution of award. Section 36 is what is required to be considered in the case at hand. When the award is challenged before the concerned Court under Section 34 of the Act and an application for stay of operation of arbitral award is sought, the Court may, subject to conditions as it deems fit, grant stay of operation of the award for reasons to be recorded in writing. The proviso directs that the Court shall while considering the application for grant of stay, if the arbitral award is for payment of money, have due regard to the provisions of grant of stay of money decree under the CPC.
9. The petitioner prefers an application before the concerned Court seeking stay of the arbitral award dated 29-12-2021 and 18-02-2022 before the concerned Court. Since the period stipulated for challenge of the award was over, Section 36 would kick in and the concerned Court in terms of its order dated 14-10-2022 rejects the application filed by the petitioner for deposit of the amount by 11 two different modes - one `40,00,000/- by cash and the reminder by bank guarantee. The Court rejects the same by the following order:
"16. Point No.2: Therefore, I proceed to pass the following Order:
ORDER I.A.No.I filed by the petitioner under Section 36(2) & (3) of Arbitration and Conciliation Act read with Section 151 of Civil Procedure Code is hereby allowed.
Operation and execution of Arbitral Award passed in A.C.No.116 of 2021 dated 29-12-2021 is stayed till further orders subject to condition that the petitioner shall deposit 100% of the Award Amount in the registry of this court within one month from to-day and this amount shall be kept in FD in SBI for a period of six months with renewable clause.
If the petitioner failed to deposit 100% of award amount within 30 days, order of stay is automatically stands cancelled.
Call for Arbitral Records.
Call on 14-11-2022."
The Court directs deposit of entire amount within 30 days failing which the stay that is granted would automatically gets cancelled. The issue, therefore, is whether the order of the concerned Court is valid in law or otherwise.
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10. The issue in the case at hand with regard to deposit of 100% of arbitral Award is mandatorily to be made or otherwise is no longer res integra. The Apex Court has consistently taken the view that in a challenge to arbitral Award, the award debtor must be directed to deposit 100% of the amount and not by different modes. The Apex Court in the case of SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION (supra) has held as follows:
"18. The Appellant has unsuccessfully made an attempt to evaluate the impugned award to demonstrate that the award is against the fundamental policy of India. It is contended that no documents were produced during the arbitration proceedings. It is not for this Court to sit in appeal over the impugned award at this stage while deciding an appeal under Article 136 of the Constitution of India and examine the adequacy of the evidence before the Arbitral Tribunal.
19. Section 36 of the Arbitration Act Provides:--
"36. Enforcement.--(1) Where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Civil Procedure Code, 1908 (5 of 1908), in the same manner as if it were a decree of the court.
(2) Where an application to set aside the arbitral award has been filed in the court under Section 34, the filing of such an application shall not by itself render that award unenforceable, unless the court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.13
(3) Upon filing of an application under sub section (2) for stay of the operation of the arbitral award, the court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:
Provided that the court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Civil Procedure Code, 1908 (5 of 1908).
Provided further that where the Court is satisfied that a prima facie case is made out that,--
(a) the arbitration agreement or contract which is the basis of the award; or
(b) the making of the award, was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 to the award.
Explanation.--For the removal of doubts, it is hereby clarified that the above proviso shall apply to all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015."
20. On the other hand, Section 9 of the Act provides the amendment as follows:--
"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:--14
(i) for the appointment of a guardian for a minor or a 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 subsection (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."
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21. There is no hard and fast rule that an application made earlier in point of time must be heard before an application made later in point of time.
22. Both the applications under Section 9 filed by the Respondent and the application for stay under Section 36(2) filed by the Appellant relate to the same impugned award.
23. Even though, the applications may be independent applications, there are common factors required to be considered for both the applications of the Respondent under Section 9 and the application of the Appellant under Section 36(2). The jurisdiction of this Court under Section 9 is wide. A party may apply to a Court for interim measures before the commencement of Arbitral proceedings, during Arbitral proceedings or at any time after the making of the Arbitral Award, but before it is enforced in accordance with Section 36 of the Arbitration Act.
24. Section 9 expressly empowers the Court to pass orders securing the amount in dispute in the arbitration and/or any interim measure or protection as may appear to the Court to be just and convenient.
25. For grant of interim relief under Section 9, the Court would have to consider the prima facie case. In this case, prima facie there is an award for a huge amount of Rs. 142 Crores against the Appellant. The Respondent has a strong case for interim relief.
26. It is settled law that grounds for interference with an award is restricted. Even before this Court, the Appellant has not been able to advert to any cogent and glaring error which goes to the root of the award. The contention of the award being opposed to the public policy of India, is devoid of any particulars whatsoever.
27. Under Section 36, where the time for making an application to set aside arbitral award has expired, the award might be enforced in accordance with the provisions of the CPC in the same manner as it were a decree of the Court. Section 36(2) makes it clear that filing an application for setting aside of an award under Section 34 is not to render the award 16 unenforceable, unless the Court expressly grants an order of stay of operation of the arbitral award in accordance with the provisions of subsection (3) of Section 36, on a separate application made for that purpose.
28. Once an application under sub-section (2) of Section 36 is filed for stay of operation of the arbitral award, the Court might subject to such conditions as it may deem fit, grant stay of the operation of such award, for reasons to be recorded in writing. The Court is empowered to impose such conditions as it might deem fit and may grant stay of operation of the award subject to furnishing of security covering entire amount of the award including interest.
29. The proviso to Section 36(3) of the Arbitration Act, makes it clear that while considering an application for grant of stay in the case of an arbitral award for payment of money, due regard has to be given to the provisions for grant of stay of a money decree under the provisions of the CPC.
30. The proviso to Section 36(3) further stipulates that where the Court is satisfied that a prima facie case is made out that (a) the arbitration agreement or contract which is the basis of the award or, (b) the making of the award was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 of the award.
31. In Ajay Singh v. Kal Airways Private Limited1 the Delhi High Court correctly held:
"...Section 9 grants wide powers to the courts in fashioning an appropriate interim order, is apparent from its text. Nevertheless, what the authorities stress is that the exercise of such power should be principled, premised on some known guidelines - therefore, the analogy of Orders 38 and 39. Equally, the court should not find itself unduly bound by the text of those provisions rather it is to follow the underlying principles..."
32. In Jagdish Ahuja v. Cupino Limited2, the Bombay High Court correctly summarised the law in Paragraph 6 extracted hereinbelow:--
17
" 6. As far as Section 9 of the Act is concerned, it cannot be said that this court, while considering a relief thereunder, is strictly bound by the provisions of Order 38 Rule 5. As held by our Courts, the scope of Section 9 of the Act is very broad; the court has a discretion to grant thereunder a wide range of interim measures of protection "as may appear to the court to be just and convenient", though such discretion has to be exercised judiciously and not arbitrarily. The court is, no doubt, guided by the principles which civil courts ordinarily employ for considering interim relief, particularly, Order 39 Rules 1 and 2 and Order 38 Rule 5; the court, however, is not unduly bound by their texts. As this court held in Nimbus Communications Limited v. Board of Control for Cricket in India (Per D.Y. Chandrachud Js, as the learned Judge then was), the court, whilst exercising power under Section 9, "must have due regard to the underlying purpose of the conferment of the power under the court which is to promote the efficacy of arbitration as a form of dispute resolution." The learned Judge further observed as follows:
"Just as on the one hand the exercise of the power under Section 9 cannot be carried out in an uncharted territory ignoring the basic principles of procedural law contained in the Code of Civil Procedure 1908, the rigors of every procedural provision in the Code of Civil Procedure 1908 cannot be put into place to defeat the grant of relief which would subserve the paramount interests of justice. A balance has to be drawn between the two considerations in the facts of each case."
33. In Valentine Maritime Ltd. v. Kreuz Subsea Pte Ltd., the Bombay High Court held:--
"96. This court held that just as on the one hand the exercise of the power under Section 9 cannot be carried out in an uncharted territory ignoring the basic principles of procedural law contained in the Civil Procedure Code, 1908, the rigors of every procedural provision in the Civil Procedure Code, 1908 cannot be put into place to defeat the grant of relief which would sub-18
serve the paramount interests of justice. A balance has to be drawn between the two considerations in the facts of each case. The principles laid down in the Civil Procedure Code, 1908 for the grant of interlocutory remedies must furnish a guide to the Court when it determines an application under Section 9 of the Arbitration and Conciliation Act, 1996. The underlying basis of Order 38 Rule 5 therefore has to be borne in mind while deciding an application under Section 9(ii)(b) of the Arbitration Act."
34. Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the Arbitral proceedings, during the Arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act. All that the Court is required to see is, whether the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of interim relief as prayed for being granted and whether the applicant has approached the court with reasonable expedition.
35. It is not in dispute that there is an award of Rs. 142 Crores in favour of the Respondent. No cogent ground has been made out even prima facie, for interference with the impugned award.
36. Order 41 Rule 5 of the CPC provides for stay of decree upon furnishing of cash security. The High Court acted within the scope of its powers under Section 9 in passing the impugned judgment and order."
The Apex Court was considering the very provision and an order that had directed deposit of 100% of the award amount. The Apex Court also considers purport of Order 41 Rule 5 of the CPC and holds that it would not come in the way of the powers under Section 9 of the Act whereby the High Court could pass the order of 19 deposit of 100% of the amount. The Apex Court in certain orders passed which are earlier in time to the judgment of SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION (supra) are also germane to be noticed. The Apex Court in the case of MANISH (supra) has held as follows:
"No one appears for the respondent, even though served.
The Bombay high Court has ordered 60% deposit, pending the Section 37 Appeal. We have passed orders stating that since these are money decrees there should be 100% deposit, with the respondent being entitled to withdraw the amount deposited and furnish solvent security to the satisfaction of the High Court.
Accordingly, we set aside the impugned orders dated 19- 03-2018 and mandate a 100% deposit be made within a period of eight weeks from to-day.
The Special leave petitions are disposed of accordingly."
The Apex Court observes in money decrees of arbitration proceedings there should be 100% deposit, with the respondent being entitled to withdraw the amount deposited and furnish solvent security. The order of the Bombay High Court was set aside and 100% deposit within eight weeks was directed to be made. A little later the Apex Court in the case of TOYO ENGINEERING CORPORATION (supra) has held as follows:
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"This Court repeatedly having held that Order XLI Rule 5 principles are to be followed in these cases, we find that largely because public corporations are involved, discretion continues to be exercised not on principles under Order XLI Rule 5 but only because large amounts exist and that Government Corporations have to pay these amounts under Arbitral Awards. Both these considerations are irrelevant, as has been pointed out by us earlier. As a matter of fact, the very matter referred to in the order dated 09-08-2019 and 6-03-2020, namely O.M.P (COMM) No.366 of 2017 has resulted in a dismissal of a Section 34 petition in an award that was granted out of one of 17 other contracts arising out of the same general transaction. Mr. Sharma was at pains to point out that the section 34 petition was dismissed in that matter on completely different grounds. Be that as it may, O.M.P. (COMM) No. 366 of 2017 at the highest, therefore, would be irrelevant. This O.M.P.(COMM) No.366 of 2017 appears to be the main plank on which an amount of `125 crores alone was ordered to be deposited out of an awarded amount of `662 crores. Resultantly, we set aside both the orders and require a 100% deposit of the awarded amount to be made within a period of six weeks from to-day. The appellants may apply to the High Court to withdraw this amount on security.
The appeals are disposed of."
Here again, the Apex Court sets aside the order of the High Court and directs deposit of 100% of the awarded amount within six weeks. These are the orders passed by the Apex Court from time to time directing such deposit.
11. In the light of the judgments rendered by the Apex Court what would unmistakably emerge is, the award holder is entitled to 21 the amount of award as directed by the learned Arbitrator in the arbitral award. If that has to be stayed at the instance of award debtor, deposit should be at 100%. It cannot be in piecemeal and the award holder is empowered to withdraw the same by furnishing solvent security. This is the purport of the orders passed by the Apex Court from time to time. If the plea of the petitioner is accepted that `40,00,000/- would be by cash which would form close to ¼ of the award amount and remainder by way of Bank guarantee, it would run foul of the orders passed by the Apex Court, as the Apex Court clearly observes that the award holder should be entitled to withdraw the deposit amount by furnishing solvent security.
12. Therefore, the order passed by the concerned Court directing deposit of 100% of the amount is in tune with what the Apex Court has directed in the aforesaid orders. Therefore, there is no warrant for interference with the order passed by the concerned Court. In the light of the issue being pending before this Court all these days, I deem it appropriate to extend the time for deposit of 22 100% of the award amount by 15 days from the date of receipt of a copy of this order.
13. For all the aforesaid reasons and observations, the petition stands dismissed.
Sd/-
JUDGE bkp CT:MJ