JUDGMENT : Sureshwar Thakur, J. 1. Since, both the aforementioned appeals arise, from, an order pronounced by the learned Arbitrator, wherein, he while exercising powers, under Section 17 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), as an interim measure, for, protection of the subject matter of the lis engaging the parties at lis, hence directed one M/s. GNG Trading Company Pvt. Ltd., to, within 30 days from its pronouncement, hence, furnish bank guarantee in a sum of Rs. 10,29,70,180,/- AND also pronounced, of, its being revocable/enforceable, only, with the leave of the Tribunal. Both the parties are aggrieved there from, hence, they concert to beget its reversal, by theirs making motions before this Court. The claimant/HPSEBL has ventilated its grievance vis-à-vis. the impugned orders, on, the short ground, of the learned Tribunal (i) not revering its entire claim projected before the Tribunal, emphatically, in respect of the validly contracted claim, for liquidated damages, borne in clause 13, of the MOU, executed in terse the parties at contest, clause whereof stands extracted hereinafter, (ii) besides its irrevering, the undertaking furnished by M/s. GNG Trading Company, wherein, it undertook to, within 4 to 6 weeks since its execution, pay, the outstanding principal sum, of Rs. 11.75 crores to HPSEBL, (iii) importantly also the apposite request, of M/s. GNG Trading Company, borne, in the undertaking, comprised in Annexure A-9 appended with CARBA No. 2 of 2017, for, waiving of liquidated damages and, of, penal interest etc., also constituting acceptance, of, fasten ability of liabilityies vis-à-vis. liquidated damages AND qua the penal interest, upon, the principal amount vis-à-vis., one M/s. GNG Trading Company. Clause 13 of the MOU reads as under:-- "13 A liquidated damage equivalent to 20% of the total amount due will be imposed against default on deposit of collected money or data to the HPSEB and in line with the provisions laid down in the MSA clause 4.1(c). However, such damages will not be application under the force majeure conditions. 13.1 It is mandatory that collected money and data (both electronic and hard copy) are deposited simultaneously to the concerned unit. However, such damages will not be application under the force majeure conditions. 13.1 It is mandatory that collected money and data (both electronic and hard copy) are deposited simultaneously to the concerned unit. However, if any one of the above (collected amount or data) is deposited on a later date than the corresponding data/amount, then such ..................date of deposition for all purposes and liquidated damages shall be calculated on the basis of collection amount involved in the said transactions. 13.2 In case of continued default beyond three days from the scheduled date of deposition i.e. 72 working hours from collection day, action towards invocation of Performance Bank Guarantee (already submitted to Department of Information Technology as per the guidelines of MSA may be taken. 13.3 Continued default beyond above deadline as indicated in clause 13.2 OR in case of more then two defaults in a month, the matter shall be treated as a breach of contract and action shall be taken accordingly." 2. The learned counsel appearing for the appellant M/s. GNG Trading Company in CARBA No. 2 of 2017, has, with much vigour contended before this Court, by placing reliance, upon, a judgment pronounced by the Hon'ble Delhi High Court in ARB. A. No. 5 of 2012 and L.A. No. 22361 of 2012, titled as Intertoll ICS Cecons. O & M Co. Pvt. Ltd. v. National High Ways Authority of India, to, erect an argument, that with a trite expostulation existing in paragraphs No. 20, 21 and 41 thereof, paragraphs whereof read as under:-- "20. Notwithstanding the above legal position, considering that the relief’s sought by the Appellant in its claim and by NHAI in its counter claims are monetary in nature, even if the language of the words 'subject matter of the dispute' in Section 17 are taken to include monetary claims, the provision of 'security' in relation to such subject matter can perhaps be in the form of providing a bank guarantee. However, a direction of that nature at an interlocutory stage would indeed be an extraordinary one and has to necessarily be preceded by a determination of the possible extent of the claim that is likely to be awarded. However, a direction of that nature at an interlocutory stage would indeed be an extraordinary one and has to necessarily be preceded by a determination of the possible extent of the claim that is likely to be awarded. In other words, the power of the Tribunal under Section 17 of the Act, even if assumed to be as wide as that of the Court under Section 9 of the Act, cannot extend to directing the provision of security in the form of a bank guarantee in relation to a speculative claim for damages. 21. In Shin Satellite Public Co. Ltd. v. Jain Studios Ltd., it was held that the expression "amount in dispute" in Section 9(ii)(b) had different connotation and that it should not be used to enable a person "to recover the sums on account of damages in advance" even if the liabilities are in dispute. It was further observed that "it is probable that the Court alone and not the Arbitrator, has power to make such an order" for providing a bank guarantee. Consequently, even if in the impugned orders the Tribunal has observed that language of Section 17 is wide, it would extend to requiring a party to furnish security for a claim that is yet to be adjudicated. The expression 'any interim measure of protection' cannot obviously be stretched to include providing security for the entire possible sum of damages that could be awarded even at a stage when there is no reason or determination of what that amount might be. 41. The requirement of the Appellant having to furnish a parent company guarantee was not mandatory. When the bid was submitted without such guarantee it was accepted by the NHAI without objection and, therefore, NHAI is estopped from relying on Clause 10.16.5. Moreover after the contracts themselves were terminated more than seven years ago, there was no question of the Appellant furnishing any parent company guarantee. The failure of the Appellant to furnish a parent company guarantee was not a ground for termination. In any event, relief could not be sought against the South African company, Group Five which is not a party to the arbitration. Reference in this regard could be made to the decision in Indowimi Energy Ltd. v. Wescare (India) Ltd., 2010 5 SCC 306 . Clause 10.16.5 could not cover the so-called holding company of the Appellant. In any event, relief could not be sought against the South African company, Group Five which is not a party to the arbitration. Reference in this regard could be made to the decision in Indowimi Energy Ltd. v. Wescare (India) Ltd., 2010 5 SCC 306 . Clause 10.16.5 could not cover the so-called holding company of the Appellant. A subsidiary company could never have been in a position to compel its parent company to do anything. Order XXXIII CPC also has no applicability. There is no question for lifting the corporate veil and passing any liability on to the holding or parent company of the Appellant." Thereupon, when in consonance therewith, (I) of with here at also there being no clinching determination rendered by the learned Arbitrator, with respect to (a) the claim projected, by the claimants/HPSEBL being not either illusory or speculative, (b) also the learned Arbitrator not making a firm verdict, of the claimants, adducing evidence prima facie demonstrative, of, likelihood, of, its, succeeding in establishing its claim, (c) thereupon, the liability fastened upon the appellant/M/s. GNG Trading Company, by the learned Arbitrator vis-à-vis. furnishing of bank guarantee, hence, being visited with a vice of void ness. The learned counsel appearing for GNG Trading Company also contends that when the financial condition, of, M/s. GNG Trading Company, was, in dire straits, (d) thereupon, it was improper, for, the learned Arbitrator, to, insist upon it, to furnish bank guarantee, equivalent to the sums of money claimed against it, by the claimants/HPSEBL. (e) Lastly, the learned counsel appearing for the appellant has rested his submission, by alluding to expostulations being borne in the afore referred judgment of Delhi High Court, of, upon the learned Arbitrator proceeding, to, pronounce orders, within, the domain of Section 17 of the Act, his being enjoined to revere, the mandate borne in the provisions of Order 38, Rule 5 of the CPC, wherein, a mandate exists, of, an imperative obligation being cast besides a concomitant necessity being enjoined, upon, the litigant concerned to (a) plead ingredients thereof, besides (b) prove them, whereas, apparently, the statutory principles engrafted in Order 38, Rule 5 of the CPC, not, begetting satiation, given theirs being neither pleaded, nor prima facie proven, by the claimant/HPSEBL, thereupon, it was unbefitting for the learned Arbitrator, to, make the impugned orders. 3. 3. However, for the reasons to be recorded hereinafter, this Court is of the firm view, of, the aforesaid espousals being worthless, hence rendering them to suffer negation, (a) A perusal of the undertaking, furnished by M/s. GNG Trading Company, comprised in Annexure A-9, undertaking whereof stood furnished, by M/s. GNG Trading Company vis-a-vis. the claimant/HPSEBL, furnishing whereof emanated, from, a direction rendered by this Court, upon CPW No. 5662/2014, titled as GNG Trading Company (Pvt.) Ltd. v. State of H.P., undertaking whereof, stands extracted hereinafter:-- "In compliance of the assurance given during the proceedings of CWP No. 5662/2014, titled as GNG Trading Company (Pvt.) Ltd., v. State of H.P. before High Court of Himachal Pradesh, we undertake to pay only outstanding principle amount of Rs. 11.75 Crores to Himachal Pradesh State Electricity Board within 4 to 6 weeks. We request to waive/liquidated damages & penal interest etc., as the circumstances were beyond our control as mentioned/stated in CWP No. 5662/2014. In the light of above submission, kindly do not proceed further in the civil & criminal matters filed against us on account of non-payment of above stated amount." Hence making a visible display, (i) of, one M/s. GNG Trading Company, solemnly obliging itself, to liquidate the principal amount of Rs. 11.75 crores, to the claimant/HPSEBL, conspicuously within 4 to 6 weeks, commencing from 18.08.2014. (ii) However, the aforesaid undertaking remained evidently uncomplied, rather is resisted, (iii) Consequently, non compliance therewith, impinges, upon the bona fides, of one M/s. GNG Trading Company, importantly also it invites aspersions vis-a-vis. it, for its making an evident display, of, contumacy vis-a-vis. the pronouncement recorded by this Court in CWP No. 5662 of 2017. Apart there from, therein a request is made by one M/s. GNG Trading Company vis-a-vis. waivers, of, liquidated damages and penal interest, by the HPSEBL, thereupon, (iv) it does also make a vivid display, of, M/s. GNG Trading Company acquiescing, its breaching the relevant provisions, of the contract, executed inter se it with HPSEBL, (v) beside it also echoes a palpable display, of, its inviting upon it, the contractual consequence, of, both apt liquidated damages AND, of, qua penal interest, being ordered to be accruable, upon, the principal amount, dehors its failed request, upon, the claimant/HPSEBL, for their waiver. However, in the claimants/HPSEBL, hence, asserting for levying upon M/s. GNG Trading Company, the liability, of, liquidated damages AND for levying of penal interest, upon, the principal amount, obviously, is communicatory, of, its not acceding to the request, of M/s. Trading Company, as borne in the apposite undertaking, embodied in Annexure A-9. The afore stated undertaking, does beget, an ensuing inference (a) of the amount claimed by the claimants/HPSEBL being not either in an undetermined sum nor in speculative or illusory sums, (b) rather it being in an acquiesced sum, (c) thereupon, it is impermissible, for, the learned counsel appearing for the appellant M/s. GNG Trading Company, to contend that the claimant's/HPSEBL's, espousal was amenable, for, rejection on the ground, of it being illusory, besides it being vis-a-vis. undetermined sums of money, thereupon, the impugned verdict likewise warranting its reversal. 4. Furthermore, the learned counsel appearing for the appellant GNG Trading Company, has contended with vigour, that the mandate of Order 38, Rule 5 of the CPC, was, enjoined to be revered by the claimant/HPSEBL, whereas, theirs not averring, its ingredients, in their application nor it adducing prima facie proof in respect thereof, thereupon (i) entailed the consequence of the interim relief granted, by the learned Arbitrator, while, exercising powers under Section 17 of the Act, being visited with a vice of invalidityies. The reliance placed upon the aforesaid provisions of law, by the learned counsel appearing for M/s. GNG Trading Company, is misplaced, as a reading of the apt provisions, of, sub-section (2) of Section 17 of the Act, within whose ambit, the impugned orders were recorded by the Arbitrator, not making any vivid up surging, of, the learned Arbitrator, while proceeding to, on anvil thereof, hence make an order, (ii) his being enjoined, to, mete deference vis-a-vis. the mandate of Order 38, Rule 5 of the CPC. Consequently, even if, the Delhi High Court, has, held of deference being meted by the claimants vis-a-vis. the mandate of Order 38, Rule 5 of the CPC, its verdict is rendered per incuriam vis-a-vis. the provisions of Section 17 of the Act. Even otherwise assumingly, if the mandate of Order 38 Rule 5, of, the CPC is applicable vis-a-vis. Consequently, even if, the Delhi High Court, has, held of deference being meted by the claimants vis-a-vis. the mandate of Order 38, Rule 5 of the CPC, its verdict is rendered per incuriam vis-a-vis. the provisions of Section 17 of the Act. Even otherwise assumingly, if the mandate of Order 38 Rule 5, of, the CPC is applicable vis-a-vis. the application, cast under the provisions of Section 17 of the Act, nonetheless, with the opposite party/M/s. GNG Trading Company, obliging himself, to, carry forth besides implement the undertaking purveyed by it visa-vis the claimant/HPSEBL, (i) undertaking whereof stood furnished, by M/s. GNG Trading Company, in pursuance to directions meted by this Court in CWP No. 5662 of 2014, (ii) thereupon, it was estopped, to place reliance upon the mandate of Order 38, Rule 5 of the CPC, (iii) rather for the reasons afore stated, it appears, to diminish the worth of orders recorded by this Court in CWP No. 5662 of 2014, in pursuance whereof, M/s. GNG Trading Company, furnished an undertaking vis-à-vis. HPSEBL. (iv) Naturally, any vindication of the inapt endeavors, of M/s. GNG Trading company, is to be denounced, given any vindication thereof, undermining the clout AND the impact, of, the orders recorded by this Court in CWP No. 5662 of 2014. 5. Now alluding to the last submission addressed before this Court, by the learned counsel appearing, for appellant M/s. GNG Trading Company, of it being in dire financial straits, thereupon, it being unbefitting, to insist upon it, to furnish solvent security, comprised in its furnishing bank guarantee vis-a-vis. the claimants, is also a frail submission, given (a) it being in stark contradistinction with the echoing, made, by it in its undertaking, borne in Annexure A-9, undertaking whereof stood furnished by it vis-a-vis. claimants, wherein, exists, no articulation of any indigency befalling upon M/s. GNG Trading Company, whereupon, it is constrained, to implement the undertaking furnished by it vis-a-vis. the claimants/HPSEBL, (b) nor when subsequent thereto there is any alike credible echoing made by M/s. GNG Trading Company, (c) rather when it has proceeded, to issue dishonoured cheques upon HPSEBL, (d) besides when viewed, from the uncontroverted fact, of its, admitting its contractual liability, (e) thereupon, rather an inference is erected of it, despite, collecting sums of money, its prima facie embezzling all the collected moneys. Consequently, when the sums of money which it was obliged, to collect it, from, the consumers concerned, AND sums of money whereof stood evidently collected by it, has been neither legally nor contractually discharged, thereupon, any endeavour of M/s. GNG Trading Company, to, validate its prima facie penal misdemeanors, anvilled upon its purported indigency, would tantamount to his Court, vindicating, the purported prima facie penal misdemeanors, of M/s. GNG Trading Company. 6. Given the displays, occurring, in the undertaking and the refusal of HPSEBL/claimants, to, accept the request of M/s. GNG Trading Company, for, waiver of both liquidated damages AND vis-a-vis. the penal interest, accruing upon the principal amount, the learned Arbitrator, was enjoined, to, ensure the protection of sums of money, in dispute inter se the parties at contest, by ordering upon, the apposite party, to, furnish bank guarantee(s) in a sum of Rs. 18,46,41,732 rather, than in a sum of Rs. 10,29,79,180. For the foregoing reasons, CARBA No. 2 of 2017 is dismissed and CARBA No. 1 of 2017 is allowed. In sequel, the impugned order is modified and M/s. GNG Trading Company Pvt. Ltd., is directed to furnish bank guarantees in a sum of Rs. 18,46,732 to the satisfaction of HPSEBL, within 30 days from today. However, the bank guarantee shall be revoked/enforced, only, with the leave of the tribunal concerned. The parties are directed to appear before the learned Arbitrator on 4th January, 2018. The learned Arbitrator is also directed to, within six months from today, conclude the proceedings. All pending applications also stand disposed of. No costs. Records be sent back forthwith.