2024:BHC-OS:3855 Sharayu Khot.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 779 OF 2024 IN COMMERCIAL ARBITRATION PETITION NO. 1131 OF 2018 M/s. Balmer Lawrie & Co.Ltd. …Applicant/

Petitioner Versus M/s. Shilpi Engineering Pvt.Ltd. …Respondent ----------

Mr. Shyam Kapadia a/w Mr. Sanket Singh and Iyanah Parbhoo i/by Meraki Chambers for the Applicant/Petitioner.

Mr. Darshit Jain A/W Neeli Sandesara, Deep Dighe i/by India Law LLP for the Respondent.

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CORAM :R.I. CHAGLA J DATE : 1 March 2024 ORDER :

1. By this Interim Application, the Applicant/original Petitioner has sought recall of the order dated 4th September 2019 passed by this Court disposing of the Commercial Notice of Motion No. 2275 of 2018 filed by the Applicant. Further relief is sought for stay on the execution, operation and effect of the impugned Award dated 5th July 2018 passed by the Sole Arbitrator.

2. With regard to the prayer clause (a), which seeks restoration of the Commercial Notice of Motion No. 2275 of 2018, upon a perusal of the prior order dated 26th July 2019 passed by this Court, it is apparent that by the said order the time for filing pleadings was only extended. In the subsequent order dated 4th September 2019 reference has been made to the order dated 26th July 2019 and it has been recorded that, the Notice of Motion by that order was treated as disposed of. This recording is on the face of it incorrect. The Notice of Motion had not been disposed of. Accordingly, the order dated 4th September, 2019 passed in Notice of Motion No. 2275 of 2018 filed by the Applicant/original Petitioner is recalled and the Notice of Motion is restored to file.

3. Considering that there is already a prayer clause (b) in the present Interim Application which is very same prayer in Notice of Motion No. 2275 of 2018, there is a multiplicity of proceedings. In view thereof, Notice of Motion No. 2275 of 2018 is disposed of.

4. It is the contention of Mr. Shyam Kapadia, the learned Counsel appearing for the Petitioner, that there has been a bank guarantee furnished by the Applicant/original Petitioner as directed by the Calcutta High Court for the entire awarded amount along with the accrued interest. The bank guarantee is furnished in the execution proceedings bearing EC No. 45 of 2019 filed by the Respondent herein before the Calcutta High Court. He has submitted that upon the bank guarantee being furnished, the execution proceedings were not proceeded with. He has further submitted that by the present Application, the impugned Award is sought to be stayed and this prayer is being pressed in view of the oral directions of the Calcutta High Court that since Section 34 Petition is pending before this Court, stay is also to be granted by this Court.

5. Mr. Kapadia has submitted that the Applicant/original Petitioner has raised sufficient grounds for setting aside of the arbitral Award and which has also been re-produced in the Interim Application. However, considering that the Applicant/original Petitioner has already furnished a 100% bank guarantee before the Calcutta High Court, the same may be permitted to be furnished in this Arbitration Petition.

6. Mr. Kapadia has drawn this Court’s attention to the law laid down by the Supreme Court in Pam Developments Private Limited Vs. State of West Bengal1 at paragraph 20 which was in relation to an Application for stay of an arbitral award. The Supreme Court has considered in Section 36(3) of the Arbitration Act, as amended vide Act No.3 of 2016 with effect from 23rd October 2016, the words “having regard to” and the words “in accordance with” the provisions of the Code of Civil Procedure, 1908. The Supreme Court has held that these words would only be directory as a guiding factor. Mere reference to Code of Civil Procedure, 1908 in Section 36 cannot be construed in such a manner that it takes away the power conferred in the main statute i.e. Arbitration Act itself. It