The main legal point established in the judgment is the requirement to secure the entire awarded amount as per the amended Section 36 of the Arbitration and Conciliation Act, 1996.

JUDGMENT

Ravi Krishan Kapur, J. - This is an application under Section 36(2) of the Arbitration and Conciliation Act, 1996 ('the Act'), wherein the petitioner has prayed for stay of operation of an award dated October 6, 2021 (as corrected by a letter dated October 7, 2021)[the award] passed by the Arbitrator.

2. The disputes by and between the parties relate to the process of setting up of a Seamless Pipe Manufacturing Plant at Kharagpur. Pursuant to negotiations, the parties had entered into a contract dated 26 March, 2021, whereby construction and installation work for sanction of a Seamless Manufacturing Plant was entrusted to the respondent. The contract contained an arbitration clause and the award is a culmination of the disputes and differences which had been referred to arbitration.

3. By the said award, the Arbitrator has directed the petitioner, to pay a sum of Rs.11,35,62,532.76/- to the respondent, particulars whereof are set out hereinbelow:

4. The primary contention made on behalf of the petitioner is that by an ad-interim order dated 29 October, 2021 passed by a Coordinate Bench, stay of operation of the award was granted on the condition that, the petitioner would deposit 50% of the principal amount of the award by way of bank draft to the Registrar Original Side, High Court Calcutta. Hence, it is contended on behalf of the petitioner, that the order dated 29 October, 2021 ought to continue till the disposal of the application under Section 34 of the Act. In this connection reliance is also placed on an unreported judgement in Kolkata Metropolitan Development vs. South City Projects Calcutta Ltd.

5. On behalf of the respondent, it is submitted that, there is no question of permitting the petitioner to secure only 50% of the principal amount. The award is a composite award for an amount of Rs. 11,35,62,532.67/- and the petitioner is obliged to secure the entire awarded amount. In respect of the ad-interim order dated 29 October, 2021, it is contended that, the same was only an ad-interim measure and cannot be binding at the final hearing of this application. The respondent also relied on Pam Developments Private Ltd. Vs. State of West Bengal AIR 2019 SC 3937, Hyder Consulting (UK) Limited vs. Governor, State of Orissa (2015) 2 SCC 189, Board of Trustees for the Port of Kolkata vs. ABG Kolkata Container Terminal Private Limited 2019 SCC OnLine Cal 4009 and Kanpur Jal Sansthan and Another vs. Bapu Constructions (2015) 5 SCC 267.

6. I have considered the submissions made on behalf of the parties.

7. At the outset, I find that the award is a speaking award and has been passed after considering the rival contentions of the parties. The Learned Arbitrator appears to have taken into consideration the pleadings filed on behalf of the parties, framed issues and dealt with the respective claims as well as the counterclaims of the parties. I also find that the Arbitrator has held that:-

'It, therefore, appears from the record that excepting filing the counter statement of claim and counter claim, the respondent had not participated in the proceeding at all either to cross-examine the claimants' witness or by producing any witness of its own or by advancing any oral argument in the matter inspite of several notices were given by the tribunal'.

8. Accordingly, at this prima facie stage and being fully aware that the application under Section 34 of the Act is pending adjudication, I am prima facie satisfied that per se there is no illegality nor perversity nor violation of any law which ex facie appears from a plain reading