N.M Jamdar, J.:— By this Notice of Motion, the Original Petitioner in Arbitration Petition No. 1483 of 2015 has sought a prayer for stay of the execution of the impugned Award dated 28 February 2015 and consequent order of attachment dated 15 December 2016 in Commercial Execution Application No. 49 of 2016 taken out by the Respondent.
2. The Applicant - Original Petitioner, Maharashtra Airport Development Company Ltd., had floated a tender inviting the bids for construction of roads for a project at Nagpur, in the year 2010. The Respondent submitted the bid and work was awarded to the Respondent and contract was executed on 30 September 2010. Dispute that arose between the parties, was firstly referred to a Steering Committee and thereafter, to the Arbitral Tribunal. The Arbitral Tribunal rendered its award on 28 February 2015 directing the Applicant to pay an amount of Rs. 20,88,14,957/-. This award was challenged by the Applicant by way of Arbitration Petition No. 1483 of 2015. The Arbitration Petition came up for admission on 13 July 2016 and it was admitted. The Petitioner - Applicant was directed to file Notice of Motion seeking stay of the impugned award which the Notice of Motion was to be considered on its own merits. Therafter, the present Notice of Motion is taken out.
3. Heard Mr. Madon, Senior Advocate for the Petitioner and Mr. Vashi, Senior Advocate for the Respondent. Reply and rejoinder have been filed.
4. It was contended by Mr. Madon that though a view has been taken by the learned Single Judge of this Court in the case of Board of Control for Cricket in India v. Rendezvous Sports World 2016 SCC OnLine Bom. 6064 that the amended provisions of Section 34 of the Arbitration Act apply even to the pending Arbitration Petitions, a contrary view has been taken by the Division Bench of Delhi High Court in the cases of Ardee Infrastructure Pvt. Ltd. v. Ms. Anuradha Bhatia and Ardee Infrastructure Pvt. Ltd. v. Yashpal & Sons FAO OS Nos. 211/16 & 222/16. Mr. Madon submitted that the Special Leave Petition challenging the order passed by the learned Single Judge of this Court, is pending before the Apex Court. Mr. Madon submitted that in view of this position of law and the view taken by the Division Bench of Delhi High Court, the action of attachment of the bank account of the Applicant is not warranted. Mr. Madon submitted that due to the attachment of the bank account, the Applicant is not been able to discharge its duties in respect of providing infrastructure, more particularly for the Airport being planned at Shirdi, Maharashtra. Mr. Madon submitted that the Applicant a Government Company, it is solvent and is not necessary that any direction be issued for deposit of the amount and the attachment be lifted.
5. Mr. Vashi, Senior Advocate for the Respondent on the other hand submitted that even though opportunity was given to the Petitioner to take out the Notice of Motion for stay, the same was not moved and it is only when the Respondent has proceeded any execution of the award and has attached the bank account, the present Notice of Motion is taken out. Mr. Vashi also submitted that the Notice of Motion cannot be treated as simplicitor seeking stay of the award but will have to be treated as being filed under Order 21 Rule 30 of the Code of Civil Procedure in respect of attachment of a decree.
6. Even though the Special Leave Petition has been filed against the decision rendered by the learned Single Judge in the case of Board of Control for Cricket in India the view taken by the learned Single Judge of this Court has not been suspended or stayed. Therefore, as per the view taken by this Court, the amended provisions of Section 34 of the Act apply even to the pending proceedings and therefore, the application taken out by the Applicant will have to be treated as the one filed under Section 36(3) of the Act. Therefore, the Court will have to keep in mind the provisions of Code of Civil Procedure treating the award as a money decree while entertaining the plea of the Applicant for stay of the Arbitral Award and further proceedings.
7. The Applicant is not the Government, but a Government Company and will stand on a different footing than the Government. The case of the Applicant will have to be treated like ordinary litigant seeking to assail a money decree. The distinguishing factor put forth is that the Applicant is discharging public functions of providing public utility which will be affected. However, if the affidavit in support of Notice of Motion is perused, it only states that the Applicant is developing around nine Airports in the Maharashtra besides upgrading and developing other Airports. It is in these context, the disability of not being able to utilize the amount under attachment of Rs. 25,78,32,183/- has been put forth. A query was put to Mr. Madon as to whether the Applicant has other bank account to perform its function. Mr. Madon on taking instructions states that there are other bank accounts, however, the present account is designated for a Shirdi International Airport. This specific stand has not been taken on affidavit. Therefore the Applicant has various other bank accounts and designation of this account for Shirdi International Airport is only an internal arrangement. Therefore, prima-facie, I am not convinced that because of this amount being under attachment, the work of Shirdi International Airport will suffer, as the money from other bank accounts can always be utilized by the Applicant. In these circumstances, I am not inclined to grant any absolute stay to the Applicant, and the prayer for stay of further proceedings will be on conditions.
8. It was then contended that if the amount continues to be under attachment, the interest on the said amount will stop which will cause prejudice even to the Respondent. This position can be remedied by directing the Applicant to deposit the amount in this Court which can then be invested in a fixed deposit. In these circumstances, the Notice of Motion is disposed of by granting prayer clauses (a) and (b) on the condition that Applicant will deposit the amount under award in this Court within period of eight weeks from today. If the amount is not so deposited within the period of eight weeks as aforesaid, it will be open to the Respondent to take steps to execute the award.
9. The Notice of Motion is accordingly disposed off in the above terms. In case, any application is taken out by the Respondent pursuant to the deposit, it will be considered on its own merits.