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5. During the pendency of the arbitration proceedings, the respondent/NTPC invoked the bank guarantee furnished by the appellant/HSCL. Aggrieved by the said invocation, the appellant/HSCL filed a petition on the original side of this Court under Section 9 of the A&C Act for restraining the respondent from encashing the bank guarantee (OMP 567/2010). Vide order dated 28.09.2010, an ex parte ad interim injunction was granted in favour of the appellant, restraining the respondent from encashing the bank guarantees in respect of the LOA's dated 31.07.2003 and 03.02.2004. But, on the very next date, i.e., on 19.10.2010, a counsel had appeared on behalf of the respondent/NTPC and stated that even before the interim order came to be passed, the bank guarantees in question had been encashed on 25.09.2010, thus making the Section 9 petition infructuous. At that, counsel for the appellant/HSCL had sought directions to the respondent/NTPC to secure the sums reflected by the bank guarantee during the pendency of the arbitration proceedings. Taking on record the assurance was given on behalf of the respondent/NTPC that at any given point in time, they shall retain in their bank account, monies equivalent to the bank guarantee in issue, which would finally abide by the Award, the said petition was disposed of. Though neither side have referred to the above petitions in the course of arguments, a reference to the said proceedings finds mention in the Awards dated 10.04.2012 and 10.05.2012.

8. Thereafter, the Appellate Authority proceeded to hear the parties and finally dismissed the review petitions filed by the appellant/HSCL, vide order dated 30.3.2016. The said dismissal order was challenged in a writ petition filed by the appellant/HSCL [WP(C)No.5064/2016]. The said petition was dismissed in limine by the learned Single Judge vide order dated 30.5.2016. While passing the said order, the learned Single Judge referred to his earlier order dated 29.2.2016 passed in WP(C)1635/2016 and observed that it was not open to the parties to challenge the Appellate Authority's order/Award by filing a writ petition but it would be open to the appellant/HSCL to file appropriate proceedings under the A&C Act.

12. Aggrieved by the impugned order dated 7.12.2016 and the stand taken by the respondent/NTPC in its communication dated 3.1.2017, the appellant/HSCL has filed the present appeal.

13. Mr. Patwalia, learned Senior Advocate appearing for the appellant/ HSCL canvassed that the learned Single Judge ought to have followed the decision of the Supreme Court in the case of M/s. Northern Coldfield Ltd. (supra) and taken the view expressed therein to its logical conclusion by directing the respondent/NTPC to agree for the appointment of a Sole Arbitrator instead of leaving the matter to the whims of the respondent/NTPC who has now declined its consent for being referred to arbitration under the A&C Act. It was argued that the position taken by the respondent/NTPC in its communication dated 3.11.2017, has virtually left the appellant/HSCL without a legal remedy. Learned counsel contended that in any event, the stand of the respondent/NTPC that the disputes between the parties ought to be referred to the Cabinet Secretariat under the PMA, runs contrary to the judgment of the Supreme Court in the captioned case, wherein it has been held that arbitration proceedings conducted by an Arbitrator appointed under the PMA, is outside the statutory framework and any award made in terms of the PMA, is neither amenable for being set aside under the statute (earlier the Arbitration Act, 1940 and subsequently replaced by the A&C Act) and nor could the same be made rule of the court, for being enforceable as a decree.

30. The sequence of events narrated earlier would further reveal that the Appellate Authority under the PMA had entertained the review petitions filed by the appellant/HSCL against the order dated 11.02.2015, but had ultimately dismissed the same on the ground that the pleas taken therein would require a detailed examination of merits, which was not warranted under the OM dated 12.06.2013 relating to the PMA Scheme. The aforesaid dismissal order was tested by the appellant/HSCL in a writ petition, which was dismissed by the learned Single Judge by adverting to the earlier order dated 29.02.2016 passed in W.P.(C) 1635/2016 and yet again holding that the appellant/HSCL would have an option to file appropriate proceedings under the A&C Act, but no challenge could be laid against an order/Award by way of a writ petition. The said observations were a reiteration of the view expressed by the learned Single Judge in his earlier order dated 29.02.2016. However, the respondent/NTPC did not object to the said view with regard to the forum before which the appellant/HSCL could assail the order of the Appellate Authority.