- (1.) The abovementioned two revision petitions are being disposed of by this common judgment as in both of them common questions of law and facts are involved ; Facts of Revision petition No, 1073/2002
(2.) In this revision, an application dated 5-6-2004 was filed on behalf of the petitioner under Section 151, Cr.P.C. with a prayer that since award dated 14-8-2003 has been passed by the Arbitrator in its favour, therefore, the respondent be directed to make payment of amount of Bank guarantees to the tune of Rs. 33,91,282/- to the petitioner immediately along with Interest @ 12% per annum.
(3.) It arises in the following circumstances : (i) That tenders were invited by the respondent for construction of health centre and stadium (Package VI) and the tender submitted by the petitioner firm was accepted by the respondent and an agreement between the parties was executed on 26-2- 1998 and the total cost of work as estimated was about 2.49 crores. As per the contractual conditions, four bank guarantees were furnished by the petitioner from the Central Bank of India, Kolkata Branch, Kolkata. (ii) Since a dispute arose between the parties, respondent terminated the contract executed on 18-5-1999 and thereafter the respondent attempted for invocation of the bank guarantees furnished by the petitioner firm. (iii) There was a Clause 25.3(F) in the agreement to the effect that in case there was some dispute, the same may be referred to the sole Arbitrator and in pursuance of the above Clause, the matter was referred to sole arbitrator and on 7-8-99, Sh. O. P. Goel was appointed as sole arbitrator. (iv) That the proceedings before the sole arbitrator were going on, the petitioner-firm submitted an application on 25-3-2002 under Section 17 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) asking for certain interim measures of protection in respect to the bank guarantees furnished by it to the respondent in connection with the said contract. (v) After hearing both the parties, through order dated 23-6-2002, the sole Arbitrator allowed the application filed under Section 17 of the Act of 1996 by the petitioner -qlaim- ant in the following manner : "Keeping the three principles of prima facie case, balance of convenience, and the possibility of irretrievable loss, I find that the justification lies in allowing protection of the property of the claimants in the hands of the respondents that is the bank guarantees, as per authorization given to the arbitrator under Section 17 of the Arbitration and Conciliation Act, 1996.I, therefore, order that the respondents should preserve the bank guarantees as detailed in the application as a property of the claimants. I am simultaneously, providing security to the respondents by ordering that the claimants should ensure that they keep the bank guarantees valid and alive till such time the ftnal award in the disputes under arbitration with me is issued. Thus, the respondents shall refrain from invoking the bank guarantees and the claimants shall ensure keeping the bank guarantees alive and valid till the final award in the case is issued by the arbitrator.";