GAMMON INDIA LTD Vs. SANKARANARAYANA CONSTRUCTION PVT LTD

JUDGEMENT

(1.) CHALLENGE in this appeal is the Judgment and decreetal order passed in Tr.O.P.No.628 of 2008, dated 11.10.2009, in and by which, the learned single Judge permitted the Respondent herein to furnish Bank Guarantee in the very same execution proceedings, and withdraw the amount deposited therein by the Petitioner, who is the Appellant herein.

(2.) APPELLANT/Petitioner was awarded a contract for the construction of a Masonry Dam across the Tamiraparani river basin in Mekarai Village, Shenkottah Taluk, Tirunelveli District. Block nos. 11 to 18 were assigned by the APPELLANT/Petitioner to the Respondent, by way of sub-contract, under a Work Order dated 02.11.2000. Since dispute arose between the parties, compelling the Respondent herein to file an application under Section 11 of the Arbitration and Conciliation Act, 1996. By an order dated 16.04.2005 passed in O.P.No.538 of 2003, Hon'ble Mr.Justice N.V.Balasubramanian (Retired) was appointed as Arbitrator and he entered reference and passed an interim award dated 16.12.2006, directing the APPELLANT/Petitioner herein to deposit a sum of Rs.56,63,990/- to the credit of O.P.No.538 of 2003 within six weeks and permitting the respondent to withdraw the same after furnishing Bank Guarantee.

(3.) APPELLANT/Petitioner filed Tr.O.P.No.628 of 2008 challenging the interim award passed by the Arbitrator and stated that arbitral Tribunal has not empowered to pass an interim award on admission, as in the case of Order XII, Rule 6, C.P.C. His second submission is that in any case, a decree/award on admission cannot be passed unless the admission was clear, unambiguous and unequivocal and the statement of defence was not an admission at all. His third limb of argument is statement of defence was only an adjustment, which was different from even a set off and that therefore, no interim award that would have the effect of upsetting such adjustment could be passed.