M/S Smj-Rk-Sd (Jv) v. National Highways Authority of India De+

JUDGMENT

¶1This 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.

¶2By 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 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.

¶3Section 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

OMP 613/2008 M/s SMJ-RK-SD(JV) v. National Highways Authority of India * 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?