IMPORTANT POINT
The court's decision emphasized that no case was made out for unconditional stay against the enforcement of the arbitral award.

JUDGMENT (Oral)

I.A. 18268/2023 (stay)

1. Petitioner, by way of present application filed under Section 36(3) of the Arbitration and Conciliation Act (hereafter, referred to as `A&C Act'), seeks unconditional stay of the arbitral award dated 16.03.2022 whereby it has been asked to refund a sum of Rs.1,69,43,54,488 to the respondent.

2. Facts relevant for consideration of the captioned application are that disputes arose between the parties in the context of work relating to contract for Main Civil Works Package-1: Dam, Spillway and Power Intake of Kol Dam Hydro Electric Project located in Bilaspur District. The disputes were referred to the Arbitral Tribunal resulting in passing of the impugned award.

3. The Petitioner raised a claim for Rs.3,66,34,27,582.45/- but was awarded only a sum of Rs.1,30,23,45,512/-. However, the said sum was directed to be set off against the sum of Rs.299.67 Crores paid to the petitioner by the respondent towards advance. Since the sum awarded to the petitioner is less than the advance in its possession, the Arbitral Tribunal directed refund of the excess advance of Rs.1,69,43,54,488/- by the petitioner to the respondent. The petitioner has challenged the said set off and refund awarded by the Arbitral Tribunal by filing objections under Section 34 alleging that the Arbitral Tribunal travelled outside the limits of reference in granting the refund when no specific relief of set off was claimed by the respondent from the Arbitral Tribunal in its statement of defense.

4. Petitioner has challenged the impugned award by way of the captioned petition which is pending consideration. Pending disposal of objections under Section 34, the petitioner is seeking unconditional stay of the impugned arbitral award and has contended that this court is empowered to pass such unconditional stay under Section 36(3) of the A&C Act.

5. Petitioner has referred to Malwa Strips Pvt. Ltd. v. Jyoti Ltd., (2009) 2 SCC 426; Polimer Media Pvt. Ltd. v. Ultra Media & Entertainment Pvt. Ltd., Arbitration Petition (L) No. 34542 of 2022; Damodar Valley Corporation v. Reliance Infrastructure Ltd., 2022 SCC OnLine Cal 553 and Future Market Networks Ltd. v. Laxmi Pat Surana and Ors., I.A. No. G.A. 1 of 2022 in A.P. 698 of 2016 to contend that even under Order XLI Rule 5 of CPC, which is the guiding provision referred to in Section 36(3) of the A&C Act, the courts are conferred with discretionary powers to grant unconditional stay of execution of the impugned decrees.

6. On the contrary, the respondent has cited Mahanagar Telephone Nigam Limited v. Canara Bank and Anr., 2023 SCC OnLine Del 1172; Power Mech Projects Ltd. v. Sepco Electric Power Construction Corporation, 2020 SCC OnLine Del 2049; Pam Developments Pvt. Ltd. v. State of West Bengal, (2019) 8 SCC 112 and National Highway Authority of India v. Transstroy (India) Ltd., 2022 SCC OnLine SC 832 to contend that power to grant unconditional stay of the decrees is confined to cases where the making of the Arbitral Award is induced by fraud and none else.

7. On merits, the respondent has refuted the contention of the petitioner that the Arbitral Tribunal strayed beyond the limits of its reference in awarding set-off and the consequential refund of the excess advance in favour of the respondent. Respondent has referred to an application dated 27.10.2015, filed by it whereby a specific relief of set-off and consequential refund of excess advance was sought from the AT. Respondent would contend that the Arbitral Tribunal has adjudicated the claim of set off, which it was empowered to do under Section 23(2A) of the A&C Act.

8. The question of power of courts to grant unconditional stay on the enforcement of arbitral award challenged under Section 34, is beyond debate given the rulings of various courts passed from time to time. The decision of Co-ordinate bench of this Court in Power Mech Projects (Supra) was assailed upto Supreme Court, where the Supreme Court vide judgment dated 19.09.2022 in