SANJAY KISHAN KAUL, J.

1. The reference to the appellant herein is being made to M/s. Engineering Projects (India) Limited while to M/s. Arvind Construction Company Private Limited as the respondent as per the cause title in EFA (OS) No.4/2008. The appeals which have been taken up for consideration arise as both the parties are partly aggrieved by the impugned order.

2. The appellant undertook the construction of a building at Baghdad and entered into a contract with the respondent and sub-contracted part of the work. The disputes between the parties were referred to the sole arbitrator late Mr. Justice Prakash Narain (Retd.) in view of the existence of an arbitration clause who made and published an award dated 31.8.1990. The operative portion of the award reads as under:

“a)That the encashment by EPI of Bank Guarantee of Rs.38,25,000.00 submitted by ACCL, was not justified that EPI do pay back to ACCL this amount of Rs.38,25,000.00 and interest thereon @ 15% from 6.12.1986, the date of encashment of Bank Guarantee, upto 23,6,1988, the date of reference, amounting to Rs.8,84,500.00 (Rupees eight lacs eighty four thousand five hundred only).

b) That after taking into consideration the ad hoc advances and other payments made by EPI to ACCL and adjustment of the same EPI does pay to ACCL a further sum of ID 2,10,000.00 (Iraqi Dinars two hundred and ten thousand only) in equivalent Indian Currency, (taking the conversion rate of 1 ID at US $ 3.377778, this amount of ID 2,10,000.00 held payable by EPI comes to US $ 7,09,333.38, which in turn converted to Indian Currency works out to Rs.1,23,56,587.00 (Rupees One crore twenty three lakhs fifty six thousand five hundred eighty seven only), as per exchange rate of Rs.17.42 per One Dollar prevailing on the date of the award. Accordingly, EPI do pay Rs.1,23,56,587.00 to ACCL.

c) EPI shall also further pay interest @ 15% P.A. on Rs.38,25,000.00 and on Rs.1,23,56,587.00 from the date of this award till the date of payment or till the date of decree, whichever is earlier.

d) Parties will bear their respective costs of this reference.”

3.The award being under the Indian Arbitration Act, 1940, was filed in Court and the respondent prayed for the award to be made rule of the court. The appellant filed objections. The learned single Judge of this Court (as he then was) dismissed the objections and made the award rule of the court directing decree to be drawn up in terms of the award. The respondent was held entitled to interest @ 12 per cent per annum from the date of decree till date of realization.

4.The appellant filed FAO (OS) No.69/1995 aggrieved by the order of the learned single Judge along with an application for stay. In terms of order dated 5.12.1996 the execution of the decree under appeal was stayed subject to the appellant depositing an amount of Rs.1.50 crore in two installments in the Court and the amount to be released to the respondent on furnishing a bank guarantee with the Registrar of this Court for restitution with interest in the event of the appeal being allowed. The appellant deposited the amounts on 2.1.1997 and 16.1.1997 and the respondent furnished a bank guarantee and thereupon withdrew the amount on 7.3.1997.

5.The aforesaid appeal was dismissed by the Division Bench on 29.8.2006 and the Special Leave Petition filed by the appellant also met the same fate on 7.8.2007. Thereafter a review petition was also filed against the order dated 7.8.2007 and the same was dismissed on 4.12.2007. The matter, thus, stood concluded insofar as the challenge to the award was concerned.

6.The respondent filed an application for execution on 11.10.2007 seeking recovery of Rs.3,74,05,918.00 after having given credit for the amount of Rs.1.50 crore withdrawn during the pendency of the appeal before the Division Bench. The learned single Judge acting as the executing court in terms of the impugned order dated 17.1.2008 came to the conclusion that a sum of Rs.4,47,58,554.00 was payable

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