S. MURALIDHAR, J.

1. Intertoll ICS Cecons O & M Co. Pvt. Ltd. (‘Appellant’) has in these two appeals under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 (‘Act’) challenged two separate impugned orders dated 6th February 2012 passed by the arbitral Tribunal (‘Tribunal’) in applications filed by the Respondent National Highways Authority of India (‘NHAI’) under Section 17 of the Act. By the impugned orders the Tribunal directed the Appellant to furnish security either of immovable property or in the form of a bank guarantee (‘BG’) for the satisfaction of the amount of counter claims of the NHAI that may be awarded by the Tribunal. The amount of such security was determined as Rs.2,93,70,70,025 as regards Package-1 and Rs. 32,85,12,572 as regards Package-2.

Background Facts

2. The facts leading to the filing of the present appeals are that pursuant to the bids invited by NHAI for operation and maintenance of four lane highway sections in NH-2 (Delhi Agra-Km 18.80 to Km. 198.00) and NH-24 (Moradabad Bypass Km. 148.43 to Km. 166.65) (‘Package-2’), a joint venture agreement (‘JVA’) was entered into between Intertoll ICS Pvt. Ltd., CE Constructions Ltd., and a South African company, Intertoll (Pty) Ltd. The JV submitted a bid on 22nd October 2001 which was accepted by NHAI on 1st July 2002. As required by NHAI, the Appellant (i.e the JV) was incorporated on 26th July 2002 specifically to enter into and execute the contract for operation and maintenance of the above stretches of NH-2 and NH-24. On 8th August 2002, an agreement was executed by the Appellant and NHAI. A similar agreement was executed by the parties for the maintenance and operation of a four lane highway on NH-8 (Gurgaon-Kotputli-Amer sections) in the States of Haryana and Rajasthan

(‘Package-1’).

3. In terms of Clause 10.16.1 of the contract the Appellant submitted performance bank guarantees (‘PBGs’) of a total value of Rs.18,10,97,371. The Apellant states that although Clause 10.16.5 of the contract stated that in addition the ‘Operator’ i.e. the Appellant “shall provide a parent company guarantee in the form attached thereto”, there was no such form attached to the agreement. In fact the said clause was in fact not acted upon as NHAI did not require the Appellant to furnish any ‘parent company guarantee’.

4. The Appellant states that in regard to both the contracts its efforts were frustrated on account of persistent breaches by NHAI. As regards Package-2 the Appellant contends that apart from wrongly calling the PBGs, NHAI also unjustifiedly withheld retention money of Rs.5,42,96,773. Likewise in relation to Package-1, NHAI withheld the retention money of Rs.4,21,52,472. In both contracts NHAI also additionally withheld certain other amounts payable to the Appellant.

5. The Appellant terminated both contracts by notices dated 21st November 2005. The Appellant states that, as a counter measure, NHAI issued letters on 30th November 2005 terminating both contracts. On 3rd April 2006, the Appellant raised final bills in respect of each contract setting out the amount due and payable to it by NHAI. On its part NHAI issued final certificates on 15th and 29th May 2007 in respect of Packages 2 and 1 respectively, claiming certain amounts from the Appellant. On 20th November 2008, an arbitration agreement was entered into between the Appellant and NHAI agreeing to refer all their disputes to arbitration.

Arbitral proceedings

6. In September 2009, a three- Member Tribunal comprising two former Chief Justices of India and a former Judge of the Supreme Court was constituted. The first sitting of the Tribunal was held on 12th September 2009. The Appellant filed in relation to Package-2 a total claim for the sum of Rs.1,68,40,14,481 (as amended) and in relation to Package-1 a claim for a sum of Rs.1,31,34,69,925 (as amended). On 31st May 2010, NHAI filed counter claims (after deducting the withheld amounts) in the sums of Rs.2,03,60,04,064 for Packa