M/S Smj-Rk-Sd(Jv) vs National Highways Authority Of ...
2009 Latest Caselaw 3066 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                   Date of Reserve: July 23, 2009
                                                    Date of Order: August 07, 2009

+OMP 613/2008
%                                                                           07.08.2009
    M/s SMJ-RK-SD(JV)                                                ...Petitioner
    Through: Ms. Kiran Suri, Advocate

      Versus

      National Highways Authority of India            ...Respondent
      Through: Ms. Madhu Sweta with Mr. Anil Kumar Mishra, Advocates


      JUSTICE SHIV NARAYAN DHINGRA

1.    Whether reporters of local papers may be allowed to see the judgment?

2.    To be referred to the reporter or not?

3.    Whether judgment should be reported in Digest?


      JUDGMENT

1. This petition under Section 9 of Arbitration & Conciliation Act, 1996

("the Act", for short) has been preferred by the petitioner with a prayer that

respondent be directed to release the awarded amount of Rs.31,90,77,468/-

to the petitioner against a matching value of the bank guarantee during

pendency of the proceedings under Section 34 of the Act.

2. By an award dated 26th June 2008, the learned arbitral tribunal allowed

the claim of petitioner to the tune of above amount. This award given by

learned arbitral tribunal has been challenged by respondent under Section 34

of the Act and OMP 578 of 2008 is pending adjudication before this Court. The

present petition has been made by petitioner explaining its hardships without

liquidity. It is submitted by counsel for petitioner that petitioner was facing

extreme hardships in absence of liquidity and the amount awarded to the

OMP 613/2008 M/s SMJ-RK-SD(JV) v. National Highways Authority of India Page 1 Of 2 petitioner by the award would help the petitioner in conducting its business. It

is submitted that petitioner is prepared to give a matching bank guarantee to

secure interest of respondent in case respondent succeeds in its petition

under Section 34.

3. Section 36 provides that an award is enforceable only after objections

filed under Section 34 are dismissed. Asking respondent to pay the amount of

award on the strength of bank guarantee to be furnished by petitioner would

be contrary to the express provisions of Section 36. Provisions of Section 9

cannot be invoked to circumvent the provisions of Section 36 of the Act. No

doubt Section 9 of the Act is applicable post-award as well but it is applicable

only for the purpose as provided under Section 9 namely for preservation and

interim custody of the subject matter of arbitration agreement or for securing

amount in dispute in arbitration or preservation or inspection of any property

or things or for appointment of a receiver. The basic and main purpose of

Section 9 is to secure by interim measures the subject matter of dispute.

Section 9 of the Act is not meant for execution of award during pendency of

objections against the award. I find no force in this petition. The petition is

hereby dismissed. No orders as to costs.

August 07, 2009                                      SHIV NARAYAN DHINGRA J.
rd

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