IMPORTANT POINTS
(1) There is no hard and fast rule that application made earlier in point of time must be heard before application made later in point of time.
(2) Under Section 36 of Arbitration and Conciliation Act, 1996, where time for making application to set aside arbitral award has expired, award might be enforced in accordance with provisions of CPC in same manner as it were a decree of Court.

JUDGMENT :

INDIRA BANERJEE, J.

1. Leave granted.

2. The Appellant, an entity incorporated in China was awarded contracts in relation to various coal based power projects in India and the Respondent, a company incorporated in India was engaged as a subcontractor of the Appellant. Disputes and differences between the Respondent and the Appellant were referred to Arbitration. Suffice it to mention that the Arbitration culminated in an Award dated 17th October 2017 of approximately Rs. 1,42,00,00,000/- (Rupees One Hundred and Forty Two Crores) in favour of the Respondent.

3. On 3rd December 2017, the Appellant filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Arbitration Act”) being O.M.P. (COMM) No. 432 of 2017 challenging the Arbitral Award dated 17th October 2017 in the Commercial Division of the Delhi High Court, which is pending.

4. On the same day, that is, 3rd December 2017, the Appellant filed an interim application being I.A. No. 14342 of 2017 in the said O.M.P. (COMM) No. 432 of 2017 under Section 36(2) of the Arbitration Act seeking stay of the arbitral award.

5. After about a week, on 11th December 2017, the Respondent filed an application under Section 9 of the Arbitration Act being O.M.P. (I) (COMM) No. 523 of 2017 in the High Court, inter-alia, seeking orders on the Appellant to furnish security against the amount awarded by the Arbitral Tribunal.

6. On 14th December 2017, the High Court issued notice in the application filed by the Respondent under Section 9 of the Arbitration Act and directed the Appellant to file an affidavit of assets. In compliance with the order dated 14th December 2017, the Appellant submitted its affidavit giving details of its assets.

7. On or about 10th May 2018, the Respondent filed an application being I.A. No. 6704 of 2018 praying for deposit of the entire amount due from Talwandi Sabo Power Corporation Limited (TSPL). The said application was disposed of by an order dated 15th May 2018 with the observation that the Court did not see sufficient cause to allow the prayers made by the Respondent.

8. By an order dated 24th July 2018, the High Court directed the Appellant to disclose better particulars of its assets in India. In the meanwhile, the Appellant was directed to deposit 10% of the amount in its bank accounts, which is referred to in its affidavit of assets in the High Court at intervals of every 15 days.

9. Pursuant to the aforesaid order dated 24th July 2018, the Appellant filed its supplementary affidavit of assets. Two days later, on 20th August 2018, the Respondent filed an application being I.A. No. 11128 of 2018 for directions on the Respondent to deposit the awarded amount of Rs. 142,41,14,499/- (Rupees One Hundred Forty-Two Crores, Forty One Lakhs, Fourteen Thousand, Four Hundred Ninety-Nine Only) along with interest @ 12% per annum from the date of the award till realisation of the awarded amount in the High Court.

10. Diverse interim applications were filed from time to time. On 20th March 2019, the Respondent filed another application being I.A. No. 4259 of 2019, seeking orders for deposit of the awarded amount of Rs. 142,41,14,499/- along with interest.

11. By a judgment and order dated 17th February 2020, a Single Judge of the High Court disposed of the application filed by the Respondent under Section 9 of the Arbitration Act being O.M.P. (I) (COMM) No. 523 of 2017 along with connected interim applications. The operative part of the judgment and order dated 17th February 2020 is set out herein-below:

“32. While it is true that in some of the orders shown by the learned senior counsel for the petitioner, coordinate Benches of this Court have been directing a deposit of 50% but going by the recent judgments of the Supreme Court as well as the facts of the present case, I am of the opinion that the petitioner must deposit 100% of the awarded amount of Rs. 142 Crores (principal amount) to secure the respondent.

33. Si