The main legal point established in the judgment is that the sum to be secured for grant of stay of the Award as per Section 36 of the Arbitration and Conciliation Act, 1996 would include the post award interest, and the court has the authority to balance the equities in light of the urgent financial crisis of the parties involved.

JUDGMENT

Shekhar B. Saraf, J. - By an order dated April 28, 2022, a co-ordinate bench of this Court, while disposing of an application (IA No. G.A. 1 of 2022 in A.P. 698 of 2016), determined whether the sum to be secured for grant of stay of the Award as per Section 36 of the Arbitration and Conciliation Act, 1996 ('the Act') would include the post award interest. While ruling in the affirmative, this Court inter alia directed the following -

'Since the value and sum of the Award as it stood on 1st April, 2022 amounts to Rs. 26,53,74,118 and the respondent no. 1 is already secured to the extent of Rs. 12 crores, the petitioner shall deposit 70% of the balance amount of Rs. 14,53,74,118/- (Rs. 26,53,74,118 - Rs. 12,00,00,000) i.e. Rs. 10,17,61,882/- with the Registrar, Original Side of this court within four weeks from date. The petitioner shall have the option of depositing 50% of the said amount (i.e., Rs. 5,08,80,941/-) by way of a bank guarantee and the remaining 50% (Rs. 5,08,80,941/-) in cash. If the petitioner defaults in complying with such condition within the stipulated time, the respondent no.1 award-holder shall be free to take appropriate steps in the execution proceedings or as it may think fit.'

2. A review petition (IA No. GA. 1 of 2022 in RVWO 16 of 2022) was preferred against the order dated April 28, 2022. The same was dismissed without costs vide order dated September 1, 2022.

3. It appears that there are two bank guarantees lying with the Registrar, Original Side, Calcutta High Court, wherein one is to the tune of Rs. 6,50,00,000/- and another is to the tune of Rs. 5,50,00,000/-, which are being renewed yearly.

4. The award holder had initiated proceedings for execution of the award (E.C. 457 of 2018) and has now preferred the instant application in the execution proceedings which prays for execution of the balance sum of unsecured amount (i.e. Rs. 20,41,31,216/-) along with invocation of the two bank guarantees mentioned above and leave to withdraw the said amount.

5. Mr. Jishnu Chowdhury, learned advocate, appearing on behalf of the award holder, made the following submissions:

a) The award was passed on May 19, 2016 and the award debtors have still not taken any steps for final adjudication of the setting aside application;

b) The financial condition of the award debtors is precarious considering that (i) several proceedings against the award debtors are pending before the Supreme Court and National Company Law Tribunal, Mumbai, owing to their inability to pay employees and other dues and (ii) their current filings before the Bombay Stock Exchange and National Stock Exchange indicate huge losses;

c) The award debtors have still not complied with the order dated April 28, 2022 as they have not furnished security for 70% of the balance amount of Rs. 14,53,74,118/- (i.e. Rs. 10,17,61,882/-) and therefore there is no stay on the execution of the award;

d) A financial creditor has approached the award holder with a One Time Settlement ('OTS') dated August 30, 2022, in respect of certain dues as per which an upfront payment of Rs. 3,00,00,000/- is required, failing which there are grave chances that the award-holder may face insolvency proceedings; and e) A division bench of this Court in PAM Development Pvt. Ltd. v. State of West Bengal &Ors, [(GA No. 3232 of 2018) in (EC No. 745 of 2014)held that mere pendency of matters in court should not stall the execution proceedings and this decision should be considered in light of the reasons above.

6. The respondents have submitted two objections, which are:

a) The award holders themselves have also challenged the award and therefore cannot contend that only the respondents have not taken any steps to proceedings with the setting aside applications, and

b) If the award holder is allowed to invoke the bank guarantee and withdraw any amounts, a counter-security be presented for the same, or else their rights will be prejudiced.

7. Indisputably, the award holder has succeeded in ar