OMP 699/2008 Page 1 of 3 $~21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP 699/2008 KUNJ BIHARI CONSTRUCTION CO. PVT. LTD. ..... Petitioner Through: Mr. S. D. Singh, Mr. Jitender Singh and Mr. Kamla Prasad, Advocates. (M:9582136880) versus NIDHI BUILDERS PVT LTD ..... Respondent Through: Ms. Mrinalini Khatri and Mr. Arvind Sharma, Advocates. (M:9540999483) CORAM: JUSTICE PRATHIBA M. SINGH O R D E R % 05.09.2018 I.A. 6702/2018 in OMP 699/2008 1. The present application has been moved seeking release of the amount of Rs.25 Lakhs along with interest, which is lying deposited in this Court. The said amount was directed to be deposited in an order dated 20th March, 2009 passed in the Section 9 petition being OMP 699/2008. The operative part of the said order reads as under: “...... 33. As a result, the status quo order dated 26th December, 2008 about the work of construction and material is vacated on the condition that respondent Nos.1 and 2 shall deposit a sum of Rs.25 lac within three weeks as security in order to secure the interest of the petitioner so that, incase the petitioner ultimately succeeds, the said amount may be paid to the petitioner from the said security deposited by the respondent Nos. 1and 2. This condition is being imposed as interim measure without any prejudice to the rights and contentions of the parties. The security deposit of OMP 699/2008 Page 2 of 3 Rs.25 lac shall be kept in fixed deposit with the Registrar General of this Court pending adjudication of the right of the parties before the Arbitrator. This figure of Rs.25 lac is a tentative figure fixed by this Court due to the reason that the respondent during the course of hearing has stated that the total value of work completed by the petitioner during the period was Rs.1.40 crores approximately and out of which admittedly Rs.1.15 crores have been paid, although both the parties are claiming huge sum to recover against each other on various reasons. 34. But, nevertheless the respondent Nos.1 & 2 would be entitled to raise their alleged claims regarding other adjustment i.e. unbilled work of Rs.24,35,000/- and Rs.35 lac for stock and material and advance payment of Rs.26,92,162/- which shall be considered by the Arbitrator at the appropriate stage as per merit of the case. Similarly, the petitioner would also be entitled to raise his claims and alleged pending bills pertaining to the work done by him before the learned Arbitrator. 35. On deposit of the above said amount, the respondents shall be free to execute the remaining work, by themselves or from any other contractor after taking measurements of the work already done. A separate account in this regard shall be maintained and produced before the learned arbitrator to be appointed in the matter. The main petition as well as the contempt petition are disposed of with the directions. The arbitrator when appointed shall be within his rights and power to consider and go into the entire gamut of dispute and effectively adjudicate the disputes between the parties. It is made clear that the observations made in this order are tentative and will not bind the Arbitral Tribunal. Parties to bear their own cost.” 2. Learned counsel for the Respondent submits that the matter was referred to the Ld. Sole Arbitrator and vide award dated 13th April, 2018, the OMP 699/2008 Page 3 of 3 learned Sole Arbitrator has awarded a sum of Rs.1,28,46,762/- in favour of the Respondent. 3. The factum of passing of the award is not disputed by the Petitioner. He, however, submits that a Section 34 petition has been filed but has not yet been listed. Under these circumstances, the amount, which was deposited in order to secure the interest of the Respondent in case it succeeds, cannot be retained for an infinite period. The amount to the Respondent is much more than the amount lying deposited. The same is directed to be released to the Respondent along with any interest, which has been accrued thereon. The said release shall be without prejudice to the right and contentions of the parties in respect of any challenge which may be raised to the award. The Respondent shall abide by any further direction that may be passed in a Section 34 petition. The money released under this order shall be suitably adjusted against any amount payable to the Respondent under the award dated 13th April 2018. 4. I.A. is disposed of in the above terms. PRATHIBA M. SINGH, J. SEPTEMBER 05, 2018/dk