JUDGMENT Kuldip Singh, Judge. This petition under Section 9 of the Arbitration and Conciliation Act, 1996, ( for short ‘the Act’) has been filed with the prayer that pending the arbitration proceedings contemplated by the petitioner the decision of Dispute Board dated 12.06.2012 may be stayed. 2. The pleaded case of the petitioner is that parties had entered into a contract in which the respondent had undertaken the work relating to “Widening and strengthening of Una-Barsar-Bhota-Bhamla-Kalkhar-Nerchowk road Section Una-Bangana-Barsar Km 0/0000 to 45/000”, a formal contract was executed between the parties. The salient features of the agreement are as under:- a. Total length of Road : 45 Kms b. Date of award of work : 29.2.2008 c. Date of commencement : 14.5.2008 d. Stipulated date of completion: 13.11.2010 ( 30 months) e. Bid Value : Rs.98,94,00,670/- f. Revised Contract Value : Rs.90,41,17,787/- g. Status of work: Incomplete. Three extensions of time granted till 9.7.2012. Fourth Extension of time rejected. 3. The contract provides arbitration vide Clause 20 of the general conditions of the contract in part-3 as per procedure agreed between the parties for resolution of disputes relating to the works. The matter is first referred to Engineer for his decision. The decision of Engineer is to be challenged before Dispute Board constituted as per Clause 20 of the agreement. Any party aggrieved by the decision of the Dispute Board has the option to give a notice of dissatisfaction under Clause 20.4 within 28 days of the decision and the parties are then required to amicably settle the matter before commencement of arbitration. In case of failure by way of mutual settlement, the matter is to be referred for arbitration as per Clause 20.6 of the contract. 4. The respondent had raised a dispute regarding refusal of the petitioner to approve fourth extension of time for completion of work till 14.01.2013 which extension had not been approved by petitioner after grant of third extension up to 09.07.2012. The matter was referred to Dispute Board comprising of Shri T.L.Sharma former Engineer-in-Chief, HPPWD, Shri R.A.Chaudhary former Chief Engineer, HPPWD, and Shri S.C. Somashekarappa former Chief Engineer (NH) Karnataka. The Dispute Board gave decision in the matter on 12.06.2012. The Dispute Board vide decision dated 12.06.2012 directed the petitioner to refix the milestones and to grant extension up to 14.01.2013 as also to refund the liquidated damages imposed and recovered amounting to Rs.4,16,28,000/-. The Dispute Board gave decision in the matter on 12.06.2012. The Dispute Board vide decision dated 12.06.2012 directed the petitioner to refix the milestones and to grant extension up to 14.01.2013 as also to refund the liquidated damages imposed and recovered amounting to Rs.4,16,28,000/-. 5. The dispute was referred to the Dispute Board by respondent vide letter dated 14.12.2011. The petitioner filed reply dated 23.01.2012. The respondent filed rejoinder dated 29.02.2012. The respondent in the letter dated 14.12.2011 while referring the dispute had not claimed refund of any amount deducted towards liquidated damages. The respondent, for the first time, in rejoinder demanded the refund of liquidated damages amounting to Rs.3,53,28,000/-. 6. The petitioner dissatisfied with the decision dated 12.06.2012 of the Dispute Board vide letter dated 10.07.2012, issued notice of dissatisfaction together with notice of intention to refer the matter to arbitration under Clause 20.6 of the contract. The petitioner has expressed its intention to challenge the decision of the Dispute Board and to commence arbitration, hence according to, petitioner arbitration proceedings relating to the dispute raised by respondent are deemed to have commenced. 7. The work awarded to the respondent was stipulated to be completed by 13.11.2010. There has been already an inordinate delay in the completion of works even though petitioner had extended the date of completion as recommended by the Engineer up to 09.07.2012 by way of third extension granted to the respondent to complete the work. The decision of the Dispute Board directing refund of liquidated damages already recovered is liable to be stayed pending the decision of the Arbitral Tribunal to be constituted. The project is nearing completion. In the event of action of the petitioner upheld by Arbitral Tribunal, it shall become impossible for the petitioner to recover the amount from the respondent. On the other hand, petitioner being a Government Company, the amounts lying with it are fully secure and can be paid to the respondent in the event of final adverse order against the petitioner. 8. In the event of operation of order dated 12.06.2012 not being stayed pending arbitration proceedings, the petitioner will suffer an irreparable loss and injury as respondent would be able to reap the benefits of the order dated 12.06.2012 despite the fact that said order has not attained finality and is subject to scrutiny by Arbitral Tribunal. 8. In the event of operation of order dated 12.06.2012 not being stayed pending arbitration proceedings, the petitioner will suffer an irreparable loss and injury as respondent would be able to reap the benefits of the order dated 12.06.2012 despite the fact that said order has not attained finality and is subject to scrutiny by Arbitral Tribunal. The order dated 12.06.2012 is based upon surmises and conjectures without considering the defence of the petitioner. The petitioner has good case on merits. The Dispute Board has not considered the fact that issue of refund of liquidated damages was never raised by respondent either before the constitution of the Dispute Board or at the time of filing claim before the Dispute Board. It was raised, for the first time, by respondent in rejoinder. 9. The respondent has contested the petition by filing the reply. In the preliminary submissions, it has been stated that petitioner was to make land available in time frame stated in the contract and in case of failure to provide land, the petitioner was to grant extension of time and cost to the respondent. The respondent, as per its obligation, is to execute the works in time frame stated in the contract and in case of failure, the contract provides for delay damages to be paid by respondent. The respondent also is to submit performance bank guarantee of the stated sum in the contract to safeguard the interest of the petitioner, in case the respondent fails to perform. This has been done by the respondent by providing one bank guarantee amounting to Rs.4,94,70,100/-. 10. The petitioner is deducting 6% of the monthly running bill restricted to 5% contract amount of the respondent as retention money, again a safeguard for the respondent. The petitioner has already deducted retention money Rs.4,94,70,033/-. The petitioner has, thus, total Rs.9,89,40,133/- either in cash or in the form of bank guarantee to safeguard its interest. The so-called interest of the petitioner is more than adequately safeguarded. 11. The petitioner failed to provide land in terms of the contract for execution of the contract and, therefore, extension of time was granted periodically to respondent on three occasions. The petitioner could not make land available even after three extensions, therefore, respondent submitted fourth application for extension of time which was determined by petitioner’s Engineer disregarding the ground realities and facts on record without affording any reason. The petitioner could not make land available even after three extensions, therefore, respondent submitted fourth application for extension of time which was determined by petitioner’s Engineer disregarding the ground realities and facts on record without affording any reason. The petitioner’s Engineer imposed delay damages on the respondent. This unjustified act of the petitioner’s Engineer precipitated the dispute which was referred to the DRB constituted as per the contract. 12. The adjudication of dispute by DRB was based on the record submitted by parties, arguments put-forth by the parties in the hearing and the personal knowledge of the events of the DRB. The delay damages are linked to the lapse of time, the deducted amount by the petitioner kept increasing which by the time the dispute was referred to the DRB was Rs.3,53,28,000/- and finally when DRB gave the decision the amount deducted by the petitioner was Rs.4,16,28,000/-. The petitioner kept on deducting delay damages from the running bills of the respondent when the dispute was under adjudication. 13. The petitioner instead of implementing the decision of DRB, first notified its intention to refer the dispute to the Arbitral Tribunal, to which respondent nominated its member for Arbitral Tribunal and at the same time the petitioner approached the High Court to seek the stay of implementation of decision of DRB. The petitioner has not disclosed complete facts forming part of the dispute adjudication by the DRB. The petitioner has suppressed material facts. 14. The Dispute Resolution Board adjudicated the dispute involving failure of the petitioner to provide land as per contractual schedule to the respondent and opined that petitioner failed to provide land and by arbitrary determination of extension of time imposed unjustified delay damages on the respondent. The Court under Section 9 of the Act exercises equitable jurisdiction. The petitioner has not invoked the jurisdiction of the Court with clean hands and, therefore, petitioner is not entitled to the relief. 15. The petitioner has failed to point out which term of the contract has been breached by the respondent. Prima facie case is not in favour of the petitioner nor balance of convenience and irreparable loss and injury. On the contrary, balance of convenience, irreparable loss and injury are in favour of the respondent. 15. The petitioner has failed to point out which term of the contract has been breached by the respondent. Prima facie case is not in favour of the petitioner nor balance of convenience and irreparable loss and injury. On the contrary, balance of convenience, irreparable loss and injury are in favour of the respondent. In view of financial constraint resulting from unlawful imposing and recovering of liquidated damages by the petitioner, the respondent will find it very difficult to carry out the work awarded to the respondent. 16. It is open to the petitioner to move an application under Section 17 of the Act for interim measures before the Arbitral Tribunal. The parties as per Clause 20 of the contract are to invoke the arbitration Clause for resolution of the dispute. The Arbitral Tribunal is to hear the parties and decide the case on merits thereafter. 17. On merits, it has been stated that DRB has correctly directed the petitioner both to grant extension of time up to 14.01.2013 by refixing the dates of milestones and to refund the liquidated damages recovered to the tune of Rs.4,16,28,000/-. It has been stated that at the time of filing reply a sum of Rs.4,12,08,000/-stands imposed and recovered in lieu of liquidated damages from respondent after adjusting an amount of Rs.4,20,000/- which was earlier recovered from the respondent, but later on refunded to the respondent by the petitioner. 18. It has been stated that careful perusal of the claim of the respondent would show that focus was primarily made by it on the fourth extension of time which in the event of being granted, would mean that the petitioner would be liable to refund the imposed and recovered liquidated damages to the respondent. It has been stated that there is no substance in the allegation of the petitioner that the respondent referred to the refund of liquidated damages in rejoinder only. 19. The work was to be completed originally by 13.11.2010. The delay in completion of the work is attributable to petitioner and not to the respondent. It has been denied that it would become impossible for the petitioner to recover the amount in question from respondent in case the action of the petitioner is upheld. 19. The work was to be completed originally by 13.11.2010. The delay in completion of the work is attributable to petitioner and not to the respondent. It has been denied that it would become impossible for the petitioner to recover the amount in question from respondent in case the action of the petitioner is upheld. The petitioner has in its custody a sum of about Rs.9,89,40,133/- in the form of performance guarantee and retention money which would more than sufficiently ensure that in the event of action of the petitioner being upheld, the said sum of liquidated damages can easily be deducted from the said moneys belonging to the respondent. The respondent has submitted for dismissal of the petition. 20. The petitioner filed rejoinder. It has been stated that, initially, there was sum delay in providing land for execution of contract, but that delay was accepted by the respondent and, therefore, respondent is precluded from questioning the delay. The respondent has furnished bank guarantee amounting to Rs.4,94,70,100/- towards performance guarantee and also that retention money is being deducted from the bills of the respondent and that an amount of Rs.4,94,70,033/- has been retained by the petitioner towards retention money in terms of the conditions of the contract, but said amounts are deposited/guaranteed by the respondent in terms of the contract and to cover different eventualities and those amounts have not been furnished by respondent for liquidated damages for not achieving the milestones. It has been denied that interest of petitioner insofar as same relates to recover the amounts due for not achieving the milestones, is safeguarded as alleged by respondent. 21. It has been stated that extensions were granted for achieving different milestones. The respondent accepted the extensions by signing various orders. The fourth request for extension of time was not approved on account of non availability of land since there was no further hindrance on account of non availability of land. It has been denied that decision of Engineer was arbitrary. The liquidated damages were imposed by petitioner in terms of the contract. The petitioner in the rejoinder while reiterating the stand of the petitioner denied the case projected by the respondent. 22. I have heard learned counsel for the parties. It has been denied that decision of Engineer was arbitrary. The liquidated damages were imposed by petitioner in terms of the contract. The petitioner in the rejoinder while reiterating the stand of the petitioner denied the case projected by the respondent. 22. I have heard learned counsel for the parties. On behalf of the petitioner, it has been submitted that fourth extension was declined by the Engineer to the respondent which was challenged by respondent before the Dispute Board under Clause 20 of the contract without assailing delay damages imposed on the respondent and recovered by the petitioner from the bills of the respondent. Only in rejoinder, respondent before Dispute Board has claimed refund of Rs.3,53,28,000/- up to IPC-35 on account of delay damages recovered by the petitioner, but as against this request the Dispute Board has ordered refund of Rs.4,16,28,000/- upto to IPC-36. The contract provides arbitration Clause. The steps have already been taken for referring the dispute to Arbitral Tribunal. Prima facie case, balance of convenience and irreparable loss are in favour of petitioner, a Government Company. There is no likelihood of refund of delay damages deducted by petitioner from respondent in the event the plea of petitioner is not accepted by Arbitral Tribunal. On the contrary, it will be very difficult to recover delay damages from the respondent as the work is likely to be completed very shortly. 23. On behalf of the respondent, it has been submitted that respondent assailed the decision of Engineer for not granting fourth extension before Dispute Board. The fundamental question before the Dispute Board was the decision of the Engineer rejecting the request of respondent for fourth extension up to 14.01.2013. The entitlement of petitioner to delay damages is connected with the grant or non-grant of extension. Once the Dispute Board decided to grant fourth extension up to 14.01.2013, then petitioner is not entitled to recover delay damages from the respondent. However, respondent in rejoinder before Dispute Board requested for refund of Rs.3,53,28,000/- up to IPC-35. The petitioner is already in custody of about Rs.9,89,40,133/- which is sufficient security even if plea of the petitioner is accepted by the Dispute Board. It has been submitted that prima facie case, balance of convenience and irreparable loss are in favour of respondent. It is open to the petitioner to move under Section 17 of the Act before the Arbitral Tribunal. It has been submitted that prima facie case, balance of convenience and irreparable loss are in favour of respondent. It is open to the petitioner to move under Section 17 of the Act before the Arbitral Tribunal. The learned counsel for the respondent has relied Olex Focas Pty. Ltd. and another v.Skodaexport Co. Ltd. and another AIR 2000 Delhi 161. 24. There is no dispute between the parties regarding work allotted to the respondent nor there is dispute regarding terms and conditions of the contract. The initial stipulated date of completion of the work in the contract was provided 13.11.2010. The work could not be completed by the stipulated date of completion. The respondent has attributed delay on the part of the petitioner, whereas, petitioner has taken the plea that in the beginning there was some delay for achieving various milestones, but such delay was accepted by the respondent and three extensions were granted to the respondent for achieving various milestones under the contract. 25. It appears respondent had applied for achieving various milestones on account of delay vide letter dated 23.08.2011 for fourth extension for reasons attributable to petitioner under Clause 8.4 of the agreement. The request of the respondent for fourth extension was turned down by Engineer vide letter dated 25.10.2011. The respondent vide letter dated 14.12.2011 requested Dispute Board for adjudication of the dispute. The petitioner submitted reply dated 23.01.2012 and defended the decision of Engineer. It was submitted that delay was attributable to respondent and further extension sought by respondent was not justified and tenable. The respondent filed rejoinder dated 29.02.2012 and made following prayers:- “(a) Decide the approval of the EOT-4 as tabulated below:- Mile Stone Date of Completion. MS-1 26.12.2011 MS-2 11.05.2012 MS-3 09.07.2012 and the completion of the project. MS-4 30.12.2011. (b) Set aside the uncontractually imposed and recovered delay damages charges and refund the amount of Rs.3,53,28,000.00 thus recovered upto IPC-35[ we reserve our right to claim delay damages under clause 14.8 of contract.] (c) Direct the Employer not to make any more recoveries on account of the delay damages.” 26. The Dispute Board on 12.06.2012 recorded findings as follows:- “6.0 Findings of DB 6.1 Interim EOT-04 was submitted by the Contractor keeping in view the remaining work. However, EOT04 was rejected without considering the site conditions and without assigning any reasons. The Dispute Board on 12.06.2012 recorded findings as follows:- “6.0 Findings of DB 6.1 Interim EOT-04 was submitted by the Contractor keeping in view the remaining work. However, EOT04 was rejected without considering the site conditions and without assigning any reasons. Rejection of IEOT-04 is not justified and has denied the Contractor of his right to argue his time requirement/defend himself. 6.2 As per available record considerable delay occurred due to heavy rainfall over a period of approximately 184 days in between period June 2009 and January 2012 ( reference MPR data and rainfall record) and this fact according to the Contractor has not been considered in the approval of IEOT-03. 6.3. Entire hindrance free site was not handed over as per schedule as required under clause 2.1 of the agreement. Locations of utilities were not finalized in time in the cross-section of the road especially in kilometer 0/000 to kilometer 1/900. The proposed crossings for utility ducts are at isolated locations and these could be provided after shifting of the main pipeline crossing along the road. The shifting of the pipeline started after the Contractor had mobilized his resources. This evidently resulted in loss in terms of manpower, machinery and time and as such the time extension as per IEOT-03 is not adequate. (a) For milestone-01 the work on A-1 side of the bridge at kilometer 8/177 started much later as the Employer handed over the site after a delay of 20 months as the matter remained under correspondence for a long period for finalization of the drawings and the land acquisition process also took considerable time. It is noticed that there was no mention of retaining wall at kilometer 8/135 (RHS) in the DPR drawing. After the new drawing was provided there was the problem of shifting main waterline by the IPH department who did not agree to shift the waterline. The drawing was finalized after a delay of approximately 32 months after carrying out modifications to the junction drawing. Similarly on A-2 side there was no provision in DPR for construction of guide wall and approval to construct the guide wall up to a height of 5 m was conveyed by the Resident Engineer. The drawing was finalized after a delay of approximately 32 months after carrying out modifications to the junction drawing. Similarly on A-2 side there was no provision in DPR for construction of guide wall and approval to construct the guide wall up to a height of 5 m was conveyed by the Resident Engineer. Due to non availability of minimum base width at site, the previously approved drawing of 5 metre height was superseded and both sides upstream and downstream guide walls of 9 metre height were approved. Again decision was given to construct RCC retaining wall on approach of A-2 side to construct four numbers of guide walls of 9 m height for a total length of approximately 60 m on both sides and on both ends. All these changes caused delay in execution of the work. From the above discussion it is clear that abnormal delay of 32 months occurred in conveying approvals/decisions by the Employer. (b) In milestone-2, for A-2 side on bridge at kilometre 25/397 as per the contract, land was required to be handed over by 14.11.08 but due to various reasons the land for approach of Barsar side was handed over on 17.06.11 i.e. after a period of approximately 2 years and 6 months. (c) For milestone 03, as per contract clause 2.1, entire unencumbered site was required to be handed over to the contractor on 07.02.2009 but actually the IPH Department started shifting of water pipeline between kilometer 0/000 to km 1/900 in Jan 2011 i.e. after a lapse of 1 year and 11 months. Even the DB observed in Nov 2011 that the site from kilometer 0/000 to km 0/300 was not hindrance free. These pipelines do not require utility ducts. It is also pertinent to mention that utility ducts are required for crossing of services through ducts. In view of the facts stated above, it is clear that site in this milestone was not hindrance free till Nov 2011 for which the Contractor cannot be held responsible. (d) Regarding milestone-04, the Contractor had requested for completion by 21.02.2012. The DBM work was stopped by the shopkeepers due to non payment of compensation. However, the road section was handed over on 30.12.2011 after doing the job. (d) Regarding milestone-04, the Contractor had requested for completion by 21.02.2012. The DBM work was stopped by the shopkeepers due to non payment of compensation. However, the road section was handed over on 30.12.2011 after doing the job. 6.4 From the discussions made during the hearing and records produced to the DB, it is concluded that the delay in completing the work occurred due to non handing over of the site as per contract schedules, delays in making decisions, frequent changes made in designs/drawings etc. 6.5 The Contractor states that he has mobilized additional resources to complete the entire project by 14.01.2013 and milestone-02 would be completed by 11.05.2012. The milestone-01 and milestone-04 have already been handed over on 24.12.2011 and 30.12.2011 respectively. The Contractor should have been given opportunity to defend himself as required under clause 8.7 of the contract after observing the contractual provisions under clause 2.5 and 3.5 before rejecting his claim for extension of time-4 and before recovery of liquidated damages. The amount of rupees 6.5 crores on account of variations still held up by the Employer adds justifications for EOT. Delay in handing over of site by the Employer is breach of contract and legally he has no liberty to impose LD. 6.6 After careful consideration the DB has come to the conclusion that the extension of time -4 requested by the Contractor for the work is justified and is as tabulated below: (a) Milestone-01 = 25.12.2011 Milestone-02 = 11.05.2012 Milestone-03= 14.01.2013 and completion of the project. Milestone-04= 30.12.2011(IEOT-3 approved upto 08.01.2012 but section is handed over on 30.12.2011). (b) The request of Contractor is also justified to set aside the uncontractually imposed and recovered delay damages charges and refund the amount of Rs.4,16,28,000/= thus recovered upto IPC-36 as stated during the hearing of case (further stating that they reserve their right to claim delay damages under clause14.8 of the contract) (c) Direct the Employer not to make any more recoveries on account of the delay damages. 7.0 Decision by the DB Take notice that the decision has been made by the DB under clause 20.4 of the contract. In view of the above findings the DB opines that (a) The Employer shall grant EOT-4 as tabulated below: Milestone-01 = 25.12.2011 Milestone-02 = 11.05.2012 Milestone-03 = 14.01.2013 Milestone-04 = 30.12.2011 (IEOT-3 already granted upto 08.01.2012 for this Mile stone). In view of the above findings the DB opines that (a) The Employer shall grant EOT-4 as tabulated below: Milestone-01 = 25.12.2011 Milestone-02 = 11.05.2012 Milestone-03 = 14.01.2013 Milestone-04 = 30.12.2011 (IEOT-3 already granted upto 08.01.2012 for this Mile stone). (b) Based on the final decision for extension of time by the DB, liquidated damages imposed and recovered to the tune of Rs.4,16,28,000/= upto IPC-36 shall be refunded.” 27. The Section 9 of the Act is as follows:- “9.Interim measures, etc. by Court.- A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court- (i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely:- (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorizing any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.” 28. In Indian Railway Catering & Tourism Corporation Ltd. v. Alok Kumar Ghose and others, 2007 (2)Arb.LR 503, it has been held that power under Section 9 to grant injunction or interim order of protection by way of restraint order is only a temporary measure. While exercising the power, principles of granting injunction as provided under Order 39 Rules 1 and 2 Civil Procedure Code must be kept in mind. While exercising the power, principles of granting injunction as provided under Order 39 Rules 1 and 2 Civil Procedure Code must be kept in mind. However, it is obligatory on the part of the court to give reasons. In Alfa Laval (India) Ltd. v.J.K. Corporation Ltd. and another, 2000(1) Arb. LR 302, it has been held that the merits and demerits of the respective contentions of the parties can be gone into by the arbitrators during arbitration proceedings. 29. The Supreme Court in Wander Ltd. and another v.Antox India P. Ltd. 1990 (Supp) SCC 727 has held as follows:- “9.Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated “….is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the ‘balance of convenience’ lies.” The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.” 30. In Olex Focas Pty. In Olex Focas Pty. Ltd. and another(supra), it has been held that according to the provisions of the 1996 Act, the Court is clearly vested with the jurisdiction and powers of granting interim relief in appropriate cases. The Court further held that Court’s discretion ought to be exercised in those exceptional cases when there is adequate material on record, leading to a definite conclusion that the respondent is likely to render the entire arbitration proceedings infructuous, by frittering away the properties or funds either before or during the pendency of arbitration proceedings or even during the interregnum period from the date of award and its execution. In those cases, the Courts would be justified in granting interim relief. 31. It is admitted case of the parties that already steps have been taken for appointment of Arbitral Tribunal in terms of the contract, but Arbitral Tribunal has not been fully constituted. The Arbitral Tribunal under Section 17 of the Act has power to grant interim measures but that power can be exercised only when the matter is before the Arbitral Tribunal. However, Section 9 of the Act provides interim measures by the Court at the instance of a party before or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced. 32. The Section 9(ii)(d) of the Act provides for interim injunction. For purposes of interim injunction, prima facie case, balance of convenience, irreparable loss and injury are to be considered by the Court. The dispute will be adjudicated by the Arbitral Tribunal on merits, before the Court the controversy is limited to consider interim measures to grant or non-grant interim measures as provided under Section 9. The respondent while approaching Dispute Board vide letter dated 14.12.2011 said nothing about delay damages imposed and deducted by the petitioner. Only in rejoinder dated 29.02.2012 the respondent has prayed for refund of delay damages but without any foundation even in rejoinder for refund of delay damages. In rejoinder only plea taken in reply can be explained. In rejoinder scope of application/claim cannot be enlarged. The Dispute Board in the order dated 12.06.2012 has not given any reason for refund of delay damages by petitioner to respondent. The respondent in the rejoinder had prayed refund of Rs.3,53,28,000/- up to IPC-35 delay damages, but the Dispute Board has ordered refund of delay damages Rs.4,16,28,000/- up to IPC-36. In rejoinder scope of application/claim cannot be enlarged. The Dispute Board in the order dated 12.06.2012 has not given any reason for refund of delay damages by petitioner to respondent. The respondent in the rejoinder had prayed refund of Rs.3,53,28,000/- up to IPC-35 delay damages, but the Dispute Board has ordered refund of delay damages Rs.4,16,28,000/- up to IPC-36. 33. It is not the case of the respondent that under no circumstance contract does not provide delay damages to petitioner. The contention on behalf of the respondent that refund of delay damages is the consequential relief granted by the Dispute Board after recording finding that respondent is entitled to fourth extension, but even for consequential relief there must be foundation in the application/claim. In rejoinder, no new plea can be raised which causes surprise or prejudice to the other side. The authority is required to give reasons for granting consequential relief which are completely lacking in the order dated 12.06.2012 when Dispute Board directed refund of delay damages without recording reasons in support of refund of delay damages by petitioner. 34. It has been contended on behalf of the respondent that petitioner is already in custody of about Rs.9,89,40,133/- of respondent which is more than sufficient as security in case ultimately the plea of the petitioner is accepted by Arbitral Tribunal. This argument has no force inasmuch that amount is with the respondent under other terms and conditions of the contract and not as security against the amount of delay damages. The petitioner is a Government Company. In case, plea of petitioner is ultimately rejected by the Arbitral Tribunal, there is no likelihood of petitioner not paying delay damages to the respondent till now deducted and recovered by the petitioner from the respondent. On the contrary, the work is likely to be completed very shortly, nothing has been placed on record in case plea of the respondent is rejected by the Arbitral Tribunal, then how the respondent will ensure repayment of delay damages in case the delay damages amount recovered by the petitioner is ordered to be refunded to the respondent at this stage. In these circumstances, prima facie case, balance of convenience, and irreparable loss are in favour of the petitioner and against respondent for granting interim measure under Section 9 of the Act. In these circumstances, prima facie case, balance of convenience, and irreparable loss are in favour of the petitioner and against respondent for granting interim measure under Section 9 of the Act. In the facts and circumstances of the case and in the interest of justice till the matter is taken up by Arbitral Tribunal, it is in the interest of both the parties that status quo with respect to delay damages recovered amount is maintained. 35. In view of above, the petition is allowed. The order dated 12.06.2012 of Dispute Board for refund of delay damages already recovered by petitioner from respondent is stayed. The delay damages already recovered by the petitioner from the respondent shall abide by any order/direction, on a petition of either party under Section 17 of the Arbitration and Conciliation Act, 1996, of Arbitral Tribunal to be constituted under the agreement. In the alternative, the delay damages already recovered by the petitioner from the respondent shall abide by any award of such Arbitral Tribunal on the basis of claim/counter-claim of either party. However, it is made clear that petitioner shall not recover further delay damages from the respondent in view of fourth extension granted by the Dispute Board. The Arbitral Tribunal shall decide the matter on merits in accordance with law uninfluenced by any observation made in this judgment. No costs.