The intention of the respondent to defeat, delay, or obstruct the execution of the award is essential for invoking Section 9 of the Arbitration and Conciliation Act, 1996.

( 1 ) RESPONDENT No. 3, National Highways Authority of India (NHAI) awarded works of construction of 4 laning and strengthening of the existing 2 lane of the NH-79 from KM 120. 00 to KM 183. 00 to respondent no. 1, B. Seenaiah and Co. (Projects) Limited (BSCPL ). To execute the contract, bscpl engaged the services of M/s. Ganesh Engineering Company (GEC) for quarrying rock boulders. BSCPL engaged the services of the petitioner (MKE) for moving the rock boulders after extraction by GEC from the point of extraction to the crusher site.

( 2 ) TERMS of payment as per agreement dated 15. 7. 2002 required BSCPL to pay to the petitioner as under:

"6. 0. In consideration for the services provided by MKE, the BSCPL shall pay NKE Rs. 27/- (Indian rupees 27/- only) for every metric tonne up to 2 km lead from quarry to crusher. "

( 3 ) IT may be noted that there is another clause being Clause No. 7 whereunder petitioner was to be paid for similar services at the rate of Rs. 20/- per tonne, but this relates to transportation of rock boulders from another site. Dispute between the parties is admittedly for services rendered by the petitioner for transporting the rock quarried by GEC.

( 4 ) AGREEMENT between the petitioner and BSCPL is silent as to what would be the method employed to weigh the weight of the rock boulders. However, agreement between the BSCPL and GEC stipulates the manner in which weight would be determined. It has to be noted that GEC was to be entitled for payment per metric tonne of quantity quarried. Clause 9 of the agreement dated 20. 2. 2002 stipulates as under: "9. 0. Measurement will be made by taking levels before and after quarrying a particular area and the volume thus obtained shall be converted into tonnes by the appropriate specific gravity of the material quarried. "

( 5 ) AS per the petitioner, 5,88,081. 32 cubic mts of rock boulders were quarried by GEC. This quantity was measured and certified by Sh. B. R. Reddy, surveyor of BSCPL. Specific gravity test was conducted by BSCPL from the national Test House, Jaipur. It certified the specific gravity to be 2. 81. Thus, total quantity of rock boulders quarried comes to 16,52,508. 50 MT. Claiming to have transported the aforesaid quantity of rock boulders as per the agreement, at the contract stipulated rate of Rs. 27/- per metric tonne, petitioner claims that a sum of Rs. 4,46,17,729. 74 became payable to the petitioner. Petitioner states that it received a sum of Rs. 3,57,20,956. 00 inclusive of adjustment towards hire charges for some equipment supplied by BSCPL. Accordingly, petitioner states that a sum of Rs. 88,96,773. 74 remains as the amount payable to it.

( 6 ) IT is pleaded by the petitioner that since the work was over, respondent no. 1 turned dishonest. Attempts to reconcile the matter having failed, petitioner had no option but to proceed under arbitration. It is stated in the petition that the petitioner would be invoking the arbitration clause. During arguments, Ms. Anusuya Salwan, Counsel for the petitioner states that the petitioner has invoked the arbitration clause and sought reference of the dispute to arbitration as per the arbitration clause contained in the agreement between the parties.

( 7 ) PRAYER made in the application is to direct respondent No. 1 to deposit an amount of Rs. 88,96,773. 74 in this Court to secure the amount in dispute between the parties, alternatively to direct NHAI to withhold a sum of Rs. 88,96,773. 74 from the bills of respondent No. 1 towards the contract in question.

( 8 ) REPLY by respondent No. 1 is that the petition is motivated to harass the respondent. As per respondent No. 1, petitioner had to be paid upon payment being certified by the Project Manager. Petitioner did not mobilise the site, in that, did not transport the minimum required material to be transported each day. Respondent had to lend machinery to the petitioner. It was entitled to adjustment towards hire charges for said mach