BADAR DURREZ AHMED, J.

( 1 ) THIS order shall dispose of IA Nos. 6880/2005, 6881/2005 and OMP 351/2004 The said OMP has been filed by the petitioner--National Highways authority of India (hereinafter referred to as nhai ) under section 9 of the arbitration and Conciliation Act, 1996 praying for an order of interim injunction restraining the respondent China Coal Construction Group Corporation (hereinafter referred to as china Coal ) from interfering in the utilisation by the petitioner of the equipment, temporary works and material lying on the site. It is also prayed by NHAI that in the event China Coal contests the grant of the aforesaid interim injunction and prays for maintenance of status quo, the said china Coal be ordered to bear all the costs for watch and ward, protection of the properties on the site, loss and damage that may occur by way of pilferage, theft and the like during the operation of the order of status quo if passed by this court. IA No. 6880/2005 is an application filed on behalf of SREI international Finance Limited (hereinafter referred to as the Intervenor ) under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the cpc ) for being impleaded as a party respondent in the said OMP. IA No. 6881/2005 is another application moved on behalf of the Intervenor under Section 151 of the CPC seeking clarification of the order dated 25. 01. 2005 passed by this court in the said OMP.

( 2 ) THE learned counsel for China Coal has raised a preliminary objection to the maintainability and continuance of the present petition (i. e. , OMP no. 351/2004) under Section 9 inasmuch as an application under Section 17 is pending before the Arbitral Tribunal. Therefore, the questions which arise for consideration in this petition and the two applications are as under:-"1) Whether an application under Section 9 of the Arbitration and conciliation Act, 1996 would be maintainable during the pendency of an application under Section 17 of the said Act before an Arbitral Tribunal seized of the disputes between the same parties. 2) If the answer to the first question is in the affirmative (i. e. , the section 9 application is maintainable), is NHAI entitled to the reliefs and orders claimed in the OMP. 3) Whether the Intervenor can be impleaded as a party in the petition (OMP 351/2004 ). 4) Whether the Intervenor is entitled to seek clarification of the order dated 25. 01. 2005 passed by this court. "

( 3 ) BEFORE I consider these questions, a brief resume of the factual position is necessary. On 28. 03. 2002, a contract was entered into by and between NHAI and China Coal for four laning and strengthening of the existing two lane Section between Km 250. 500 and Km 307. 500 NH-2 subject to the terms and conditions contained in the contract. Clause 67 of the contract dated 28. 03. 2002 provides for referring all disputes and difference between the parties arising out of the said contract to arbitration in accordance with the procedure prescribed therein. Both, NHAI and China Coal invoked clause 63. 1 of the contract and purported to terminate the contract by their letters dated 09. 06. 2004 Thereafter, China Coal filed a suit being CS (OS) 679/2004 against nhai for permanent injunction restraining NHAI from encashment of the bank guarantee furnished by China Coal in terms of the contract. The suit came up for the first time before this court on 14. 06. 2004 NHAI entered appearance as caveator and in the Order 39 Rules 1 and 2 application moved on behalf of China coal, a statement was made by the learned counsel for NHAI (caveator / defendant no. 1) to the following effect:- "learned counsel for the caveator/defendant No. 1 states that matter be heard next week and defendant No. 1 shall not enforce bank guarantee till then. Defendant No. 2 is also directed not to make payment under the Bank guarantee. " on 28. 06. 2004, this court passed the following orders:- "the statement made b

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