Point of Law: power enshrined under Section 151 of the Code can be exercised if there is no express provision contained in the Code or the Special Act.

JUDGMENT :

Harish Tandon, J.:

1. The instant mandamus appeal arises from the order dated 20th July, 2021 passed by the Single Bench in I.N. No. GA/2/2021 in AP 89 of 2015 allowing an application filed by the respondent seeking withdrawal of the amount deposited in terms of the order dated 15th January, 2021 upon furnishing a bank guarantee for Rs. 1.50 crores.

2. Shown of unnecessary details, the undisputed facts are adumbrated herein below in order to have a clarity on facts in pursuit of deciding the points canvassed by the respective counsels in this appeal.

3. A notice inviting tender no 8 of 2010-11 was published by the Superintendent Engineer, Public Works Department and Public Works Road, North Bengal construction, Circle-I, Jalpaiguri for construction of RCC Bridge over river Sanaijan at Kangratoli on Imigration Road at Mekhliganj, District Jalpaiguri under Coochbehar division PWD. The respondent herein participated in the tender process and was adudged as the lowest bidder and a contract was awarded in his favour with clear stipulation that the work could be completed within 12 months. Later on, a formal contract was executed between the parties on September 29, 2010 followed by the work order dated November 11, 2010. Clause 25 of the said contract contained the arbitration clause in the event any dispute cropped up in relation thereto. In fact, the dispute cropped up and since the appellant failed to perform their obligation under the said arbitration clause by appointing an arbitrator, the application was moved by the respondent before this court under Section 11(4) of the Arbitration and Conciliation Act, 1996 which was eventually allowed on 3rd April, 2013 by appointing Mr. Santanu Basu Roychawdhury, a former secretary of PWD roads of the State. The sole arbitrator made and published an award dated October 29, 2014 directing a sum of Rs. 1,66,52,949/- to be paid to the respondent within 90 days from the date failing which an interest at the rate of 18 per cent would accrue till the recovery thereof.

4. The appellant challenged the said award under Section 34 of the said Act before this court in AP no. 89 of 2015 which was formally admitted on February 25, 2015. Subsequently, an application for stay of the award was taken out by the appellant in the said proceeding and an unconditional stay of the operation of the arbitral award was passed on December 18, 2018. The said order was challenged before the Supreme Court by way of special leave petition which was set aside and the matter was remitted back to the High Court for reconsideration. The application for stay was again listed before the Single Bench and by an order dated 15th January, 2021, the stay application was disposed of directing the appellant to deposit the sum of Rs. 1.50 crores with the Registrar, Original Side of this Court as condition precedent to such stay.

5. The respondent took out an application being GA no. 2 of 2021 seeking an order upon the Registrar, Original Side, High Court to accept the bank guarantee for Rs. 1.50 crore with a consequential order of permitting the respondent to withdraw the said sum of Rs. 1.50 crores deposited by the appellant in terms of the order dated 15th January, 2021. By the impugned order the application was allowed directing the Registrar, Original Side to accept the bank guarantee of Rs. 1.50 crores to be furnished by the HDFC Bank Ltd with the condition that the bank guarantee shall be kept alive till the disposal of an application under Section 34 of the said Act(AP no 89 of 2015). Simultaneously, the respondent was also permitted to withdraw the said amount upon the furnishing such bank guarantee.

6. The present appeal is at the behest of the appellant assailing the said order primarily on the ground that the moment the order of stay passed by the court directing the deposit of the amount with the Registrar, Original Side of this court, such order cannot be recalled, varied, modified unless there is a change in circ