Corporation Ltd. (NEEPCO) Unity Infra Projects JV Hon'ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice Hon'ble Mr. Justice S.R. Sen, Judge Appearance: For the Petitioner/Appellant(s) : Mr. VK Jindal, Sr.Adv with Mr. K Laheri, Adv For the Respondent(s) : Mr. Ashok Bhan, Sr.Adv with Mr. Ashish Bhan, Adv i) Whether approved for reporting in Yes Law journals etc.: ii) Whether approved for publication in press: No Per Mohammad Yaqoob Mir, 'CJ' 1. As against the arbitral award dated 29.03.2016, three separate appeals as filed stand entertained. Alongside the said appeals, three separate applications bearing Nos.MC (Arb.A.) No.3, 4 and 5 of 2018 as filed, were disposed of vide order dated 13.06.2018 with a direction to the appellant to pay the balance amount of Rs.142.95 crores out of the tentatively calculated amount of Rs.571.17 crores, to the respondent within two months with a condition that same shall be without prejudice to the rights of the parties. Any change in the tentative amount shall be taken care of at the final hearing and disposal of the appeals. 2. Furthermore, the appellants were directed to deposit 5% of the tentatively worked out disputed balance amount of Rs.1064 crores as security for due performance of the decree (arbitral award) as required in terms of Order 41 Rule 5 subrule (3) (c) of the Code 1 of Civil Procedure (CPC) by or before 14.08.2018 with a condition that in case deposited, the same shall be kept in fixed deposit with nationalized bank initially for a period of six months with a further condition that the deposit shall be without prejudice to the right of the either party. 3. Subject to the payment and deposit as above, the operation of the award was directed to remain stayed till disposal of the appeals. 4. The appellant has filed the instant application under the proviso to subSection (3) of Section 36 of the Arbitration and Conciliation Act, 1996 (for short the Act of 1996) read with Order 41 Rule 5 CPC and Section 151 CPC for modification of the said order on the following grounds: (1) The comparative statement as referred to in the order dated 13.06.2018 is incorrect and outdated and; (2) The arbitral award being purely declaratory therefore, the conditions/terms ought not have been imposed. 5. Regarding ground No.1, it is stated in the application that the outdated chart providing tentative estimates was prepared in the year 2016, same was to demonstrate the broad financial impact on a Public Sector Undertaking (PSU) therefore, was not meant to constitute a precise calculation of dues much less to constitute an admission. The figure of Rs.409 crores was revised to Rs.571.17 crores in the month of June 2016 which was approximate calculation based on projected quantities to be transported. In the context, the comparative table would suggest only approximate financial implication, the appellant had not been permitted to place the updated figures on records when the interim order dated 13.06.2018 was passed because on the said date, 99% of the work was completed. The total entitlement of the respondent is Rs.428.78 crores, marginally higher than Rs.428.22 crores, which stand paid. 2 6. The respondent in his affidavit filed in opposition to this application seeking modification has stated that the application is merely an afterthought aimed at subverting the order dated 13.06.2018, the claims as awarded by the learned Arbitrator have been upheld by the Court while disposing of the application under Section 34 of the Act of 1996. The contention of the appellant that the figure of Rs.571.17 crores was based on an outdated chart of the year 2016 is fully contradistinction to what has been stated by the appellant in his appeal and the application seeking stay. In this behalf referred to the following portions of the pleadings: (a) At page (vi) of the Appeal (Synopsis), the appellant has stated that "It is on record that if the payment to the contractor is made as per the analyzed rate in terms of Clause 33(iii) of the Conditions of Contract, the contracto