The pendency of an application under Section 34 of the A&C Act is no longer a bar for enforcement of an arbitral award. The court must hear the application under Section 34 of the A&C Act on its merits despite non-compliance with the conditions for staying the enforcement of the arbitral award.

JUDGMENT

Vibhu Bakhru, J. (Oral)

1. The appellant has filed the present intra court appeal under Section 37 the Arbitration and Conciliation Act, 1996 (hereafter `the A&C Act') impugning a judgment dated 09.05.2023 (hereafter `the impugned judgment') passed by the learned Single Judge. By the said judgement, the learned Single Judge rejected the application filed by the appellant under Section 34 of the A&C Act being O.M.P. (COMM) 432/2017 captioned Sepco Electric Power Construction Corporation v. Power Mech Projects Ltd., whereby the appellant had impugned an arbitral award dated 17.10.2017 (hereafter `the impugned award').

2. After the appellant had filed its application to set aside the impugned award, the respondent had filed an application under Section 9 of the A&C Act being OMP(I)(COMM) 523/2017, inter alia, praying that directions be issued to the appellant to deposit the amount awarded in terms of the impugned award.

3. In the application filed by the respondent under Section 9 of the A&C Act, several orders were passed in effect directing the appellant to make deposits with the Registry of this Court. By an order dated 24.07.2018, the appellant was directed to deposit 10% of the amount available in its bank account and 10% of further amounts that may be deposited in the specified bank accounts, with the registry of this Court. Subsequently, by an order dated 12.02.2019, the appellant was directed to furnish a bank guarantee in the sum of Rs.30 crores from a scheduled bank. The appellant furnished the bank guarantee and had also deposited a sum of Rs.2.7 crores.

4. The respondent's application under Section 9 of the A&C Act [OMP(I)(COMM) 523/2017] was disposed of by an order dated 17.02.2020 directing the appellant to deposit the entire awarded amount aggregating Rs.142 crores. The bank guarantee of Rs.30 crores and the amount of Rs.2.74 crores deposited earlier were required to be adjusted from the said sum of Rs.142 crores.

5. The appellant filed an appeal against the said order dated 17.02.2020 [being FAO(OS)(COMM) 59/2020], which was disposed of by an order dated 11.01.2021. The learned Single Judge had also passed separate order dated 17.02.2020 in the appellant's application under Section 36(2) of the A&C Act [OMP(COMM) 432/2027] staying the enforcement of the impugned award, subject to the appellant depositing the remaining awarded amount in terms of the order dated 17.02.2020 passed in OMP(I)(COMM) 523/2017.

6. The appeals [Civil Appeal Nos. 6789/2022 and 6792/2022] preferred by the appellant were dismissed by the Supreme Court by an order dated 19.09.2022, whereby the Court declined to interfere with the orders passed in the respondent's application under Section 9 of the A&C Act as well as the appellant's application for stay of the enforcement of the award moved under Section 36(2) of the A&C Act. Thereafter, the appellant filed certain clarification applications, which were disposed of by the Supreme Court by an order dated 21.11.2022.

7. In the meantime, there was also a controversy regarding the bank guarantee furnished by the appellant for a sum of Rs.30 crores bearing no. LG528501B900075 issued by the Industrial and Commercial Bank of China Limited, Mumbai Branch. By an order dated 09.04.2019, the learned Single Judge had directed the appellant to substitute the said bank guarantee from a scheduled bank in India. The appellant had carried the said order in appeal to the Division Bench and thereafter, to the Supreme Court of India. However, the said proceedings are not relevant in the present context.

8. The appellant failed to comply with the orders dated 17.02.2020 passed by the learned Single Judge and did not deposit the remaining awarded amount with the Registry of the Court. The appellant thereafter sought liberty to furnish a bank guarantee for the remaining amount. The respondent contested the said proceedings as, according to the respondent, furnishing of the bank guarantee was not a