( 1 ) THE petitioner has filed this petition under Section 9 of the arbitration and Conciliation Act, 1996 (hereinafter referred to as the act ) praying a direction on the PWD of Rajasthan State to release a sum of Rs. 1. 33 crores, out of a total escalation of Rs. 4. 51 crores in favour of the petitioner upon the petitioner furnishing security for the same or in the alternative for a direction to place a sum of rs. 1. 33 crores in a secure account till the rights and liabilities of the parties are finally adjudicated upon in the arbitral proceedings.

( 2 ) THE petition has been moved with the averments and allegations that the respondent was awarded the work of widening, strengthening and reconstruction of bhiwadi-Alwar-Karauli-Mandrail Road, (235 km. long) by the Rajasthan, Public works Department in the year 1992. The respondent in turn engaged the petitioner and some other sub-contractors to execute the said work. Petitioner was to do the work of widening, strengthening and reconstruction of road for a length of 77 km, in two stretches, one from km 147 to km 108 and the other from km 8 to km 38 which the petitioner completed to the entire satisfaction of the respondent and the State of rajasthan and a certificate to that effect was issued. It is alleged that despite the completion of the work to the satisfaction of all concerned and receiving the payment from the Public Works Department of Rajasthan Government, the respondent withheld the payment of certain bills of the petitioner in regard to escalation amount. The petitioner invoked the arbitration agreement for resolution of the dispute. Arbitral tribunal is presently looking into the claims of the petitioner and certain counter- claims filed by the respondent. According to the petitioner the respondent is likely to receive a sum of Rs. 4. 51 crores from the State of Rajasthan towards escalation costs out of which petitioner s share comes to Rs. 1. 33 crores which the respondent is bound to pass on to the petitioner. That in case the amount is not passed on to the petitioner or preserved either with the State of Rajasthan or in this Court, the petitioner is likely to suffer irreparable injury as he apprehends that the respondent might misappropriate the share of the petitioner in the escalation amount to be received by the respondent from the State of Rajasthan.

( 3 ) ON the first ever date of hearing i. e. 25. 9. 2003, while issuing notice on the petition, this Court directed the Public Works Department of Rajasthan State to retain a sum of Rs. 1. 33 crores out of the payments due to the respondent.

( 4 ) THE respondent has contested the petition by filing a reply and an application for vacation of the ad interimex parte order dated 25. 9. 2003. In the reply to the petition, the respondent has raised preliminary objections to the effect that the petitioner has filed the present petition by intentionally suppressing material facts in regard to filing a similar and identical petition under Section 17 of the Act before the Arbitral

" Tribunal with a similar prayer which was dismissed by the Arbitral Tribunal on 8. 9. 2001; the petitioner has not challenged the said order of the Arbitral Tribunal and has filed the present petition by suppressing this and other material facts in regardto respondent having been declared sick unit under the provisions of Sick Industrial companies (Special Provisions) Act, 1985 [sica] and having the protection of the said Act. It is, however, not disputed that the petitioner has invoked the Arbitration agreement but it is contended that initially they made a claim of Rs. 25,61,61,372/- which was latter on enhanced to Rs. 37,94,62,509/- which claims are being contested by the respondent. On the other hand, it is pleaded that the respondent has also filed counter-claims arising out of the same contract before the Arbitral Tribunal and the claims and counter-claims are receiving the consideration of the Arbitral Tribunal and, there