A.K. CHAWLA, J.

1. The National Thermal Power Corporation (NTPC hereafter) appeals under Section 37 of the Arbitration and Conciliation Act, 1996 (in short “the Act”), questioning two orders; one, disposing of a Section 9 petition by the respondent- (hereafter “Navayuga”) and the other, dismissing the application seeking review of the first order, both passed by the ld. Single Judge.

2. This appeal is the outcome of the award of a contract by NTPC to Navayuga for SG Area Civil Works Package for Barh Super Thermal Power Project (3 x 660 MV). The contract was signed amongst the parties on 15.4.2006 and there under, as security deposit, Navayuga furnished a bank guarantee to NTPC for an amount of Rs. 6,83,16,562/- (in short “the bank guarantee”), which was extended from time to time. The bank guarantee was issued by State Bank of India, Hyderabad, Telangana. The disputes, which arose amongst the parties, were referred to arbitration. During the arbitral proceedings, the bank guarantee had subsisted and was kept alive; it was valid till 30.6.2017.

3. The Arbitrator announced its award on 31.5.2017. By its letter dated 3.6.2017, NTPC lodged claim with the bank issuing the bank guarantee, providing however that in the case the bank guarantee was extended by a period of one year, the encashment was not to be acted upon. On 29.6.2017, the bank guarantee was extended till 30.6.2018. NTPC alleges, in this appeal that such intimation came to be received when the final unconditional invocation was already issued and direction issued to its concerned executive to proceed to Hyderabad to invoke said Guarantee. The bank thereafter released the payment under the bank guarantee. Navayuga applied under Section 34 of the Act for setting aside of the arbitral award. It filed a petition under Section 9 of the Act seeking restitution/refund of Rs. 6,83,16,562/- against the encashment of the bank guarantee, as an interim measure, inasmuch as, according to Navayuga, the invocation of the bank guarantee was a pre-mature execution of the arbitral award.

4. The learned Single Judge, by the impugned order dated 13.10.2017, taking note of the fact that a petition under Section 34 of the Act had been filed (and notice in which had been issued) and further that the invocation of the bank guarantee by letter dated 3.6.2017 was conditional, directed NTPC to deposit the amount of Rs. 6,83,16,562/- in a fixed deposit in the name of the Registrar General of this Court, subject to further orders to be passed in the Section 34 petition filed by Navayuga under Section 34. NTPC then sought recall of the said order dated 13.10.2017. It was declined by order dated 15.12.2017. NTPC has preferred the appeal against the said orders.

5. Mr. Vikas Singh, learned senior counsel, for NTPC urged that the invocation of the bank guarantee by it on 30.6.2017 was de-hors the arbitral award made on 31.5.2017 because, it was invoked in terms of the General Conditions of Contract, which provided for the refund of security deposit only upon the completion of the work to be certified by the Engineer in-charge and that, the bank guarantee was invoked independently of the award. Consequently, it urged that Section 36 of the Act, which provides for the enforcement of the arbitral award, was not attracted. It was also argued by NTPC that the present proceedings related to the pre-amended Section 36. Therefore, it could be invoked only in relation to the monies that were intended to be recovered by the successful parties under the directions of the court and had no application to a case, where the monies were already available with the successful parties and were available for appropriation, without resort to execution proceedings. It was therefore argued that any contention of Navayuga for the non-executability of the award for three months contemplated under Sections 34 and 36 of the Act, was unmerited.

6. The impugned order dated 15.12.2017 is also assailed on the premise that it tr