H. H. MEHTA, J. - At the request of learned Advocates for both the parties, these two appeals from orders are disposed by this common judgment, as in both these appeals, a common order dated 19th September, 1992 passed below application Ex. 5 and Ex. 18 in Special Civil Suit No. 2 of 1991 which is still pending on the file of learned III Joint Civil Judge (Senior Division), Palanpur (who will be referred hereinafter as the learned Judge of the Trial Court for the sake of convenience), has been challenged on the ground that said common order by which two applications Exs. 5 and 18 have been disposed of, is not legal and valid and the same is not according to law.

In Appeal from Order No. 546 of 1992, appellant is the defendant No. 1, while respondent Nos. 1 and 2 are original plaintiff and defendant No. 2 respectively in Special Civil Suit No. 2 of 1991.

In Appeal from Order No. 566 of 1992, appellant is original plaintiff, while respondents are defendant Nos. 1 and 2 respectively in aforesaid suit. For the sake of convenience, parties will be referred to hereinafter as the plaintiff and respective defendants at appropriate places.

In Appeal from Order No. 546 of 1992, the appellant i.e. defendant No. 1 has challenged an order below application Ex. 5, while in Appeal from Order No. 566 of 1992, the original plaintiff has challenged the order below application Ex. 18, in aforesaid said suit.

Application Ex. 5 was submitted by original plaintiff requesting the Court to grant an interim injunction restraining the defendant No. 1 from invoking/encashing the Bank guarantee given by defendant No. 2 in favour of defendant No. 1, till final disposal of the suit. As per order below application Ex. 5, the learned Judge of the trial Court allowed that application Ex. 5 in favour of the plaintiff and directed defendant No. 1 restraining him from encashing the Bank guarantee given by defendant No. 2, of Rs. 9 lac till the award is filed by the Arbitrator.

The defendant No. 1 immediately after making appearance in the suit, filed application Exh. 18 dated 28.1.1991 under Section 34 of the Indian Arbitration Act, 1940 for staying the proceedings of the suit. That application Ex. 18 was also granted by the learned Judge of the Trial Court by passing an order to the effect that suit is stayed till the award of the Arbitrator is filed. As against aforesaid common order below applications Exs. 5 and 18, respective aggrieved parties have preferred these two appeals separately to this Court. Appeal from Order No. 546 of 1992 is filed under Section 104(1)(i) of the Code of Civil Procedure read with Order 43 Rule 1(r) of the C.P.C. while Appeal from Order No. 566 of 1992 is filed under Section 39(1)(v) of the Indian Arbitration Act, 1940. (Same will be referred to hereinafter as the Act, for brevity).

The facts leading to these present two appeals in a nutshell are as follows :

On or about 5.1.1991, the original plaintiff-Balaram Cements Limited which is a Company incorporated under the Indian Companies Act, has filed Special Civil Suit No. 2 of 1991 in the Court of the learned Civil Judge (Senior Division) at Palanpur against defendant No. 1-Oil Natural & Gas Commission, through Joint Director (MM) ONGC Technical Business Group, Baroda and defendant No. 2-The Branch Manager of the Dena Bank, Palanpur.

As per the plaint of that suit, the plaintiff's registered company is situated at Karnavati Shopping Centre at Palanpur. Plaintiff-Company is mainly engaged in manufacturing ordinary portland cement.

The defendant No. 1 had invited tenders publicly for the supply of ordinary portland cement vide tender dated 16.7.1990. That tenders were to be submitted per notice inviting tenders, on or before 9th August, 1990. The defendant No. 1 was urgently needed different quantity of the cement for their different destinations, namely Ahmedabad, Baroda, Bombay and Mahesana. The plaintiff is one of the participants by submitting his tender under its coveri