JUDGMENT : Mohammad Yaqoob Mir, J. 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 sub-rule (3) (c) of the Code 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 sub-Section (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on the following grounds: (1) The comparative statement as referred to in the order dated 13.06.2018 is incorrect and outdated and; (2) The arbitral award being purely declaratory therefore, the conditions/terms ought not have been imposed. 5. Regarding ground No.1, it is stated in the application that the outdated chart providing tentative estimates was prepared in the year 2016, same was to demonstrate the broad financial impact on a Public Sector Undertaking (PSU)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. 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. 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 contractor is entitled to the payment of Rs.571.17 crores and for which payment the appellant Corporation has no problem”. (b) At page 33, para 29 of the appeal, the appellant has stated that “the financial implication as on 09.10.2013 on account of payment for transportation of boulders and sand is about 409.00 crores at the analyzed rate of Rs.60.74. This has been subsequently updated to Rs.571.17 crores”. (c) At page 63, para 2.3 of the appeal read with annexure 50 at page 406 of the appeal as well as at page 10 read with annexure 3 at page 24 of the stay application, it has been stated as follows: “The comparative statement showing tentative cost involvement on the basis of arbitral award in respect of transportation of sand and boulders issued vis-à-vis amount paid at present as per the rate decided by NEEPCO in KaHEP, Arunachal Pradesh”. S. No. Particulars Package I Package II Package III Total 1. S. No. Particulars Package I Package II Package III Total 1. Total quantity of sand transported/ to be transported (cum) 661479.00 264678.00 369724.00 1295881.00 2. Amount in terms of presently offered rate 284.93 cr. 174.61 cr. 111.63 cr. 571.17 cr. 3. Amount in terms of award, i.e. BOQ rates 835.93 cr. 624.00 cr. 185.55 cr. 1656.48 cr. % of deviation from NEEPCO’s given rate = 1645.48/571.17 x (100) = 288.50% i.e. to say 2.2885 times higher than the analyzed rate”. (d) Similar references to the figure of Rs.571.17 crores having been admitted by the applicant as payable to the respondent, or the amount for which the respondent has “done the work”, can be seen at page 71, para 2.15 and page 72, para 2.17 of the appeal, as well as page 11, para 8 (vi) of the stay application. 7. The respondent has further stated in his affidavit that the appellant has made references and admissions to the tentative figure of Rs.571.17 crores as payable to the respondent. It is in the stated background that at the time of hearing on 13.06.2018, the Court had allowed the learned counsel to consult their principal particularly to take specific instructions vis-à-vis the said amount of Rs.571.17 crores. It is only thereafter that the direction was issued for deposited of the amount. 8. On thoughtful consideration of the respective pleadings and submissions of the learned counsel for the parties, it has to be made clear that it is the appellant who had annexed with his appeal the comparative statement wherein, the tentative amount payable was shown as Rs.571.17 crores and it was also shown that out of Rs.571.17 crores an amount of Rs.428.22 crores was paid. On such basis, learned counsel was in the open Court asked as to why the appellant shall not deposit the balance amount of Rs.142.95 crores. It is a fact that he has not consented for deposit but at the same time he had nothing to say, he was given time to have instructions, the matter was passed over for a while, then, on contacting his client learned counsel stated that his client or representative has no authority to give consent but at the same time he had no answer as to why Rs.142.95 crores out of the tentatively worked out amount of Rs.571.17 crores be not directed to be deposited. 9. 9. It has to be made clear that on consideration of the respective pleadings when the matter was heard on 13.06.2018, in the memo of appeal, synopsis, application of stay it has been repeatedly stated that Rs.571.17 crores were tentatively payable, out of which Rs.428.22 crores were paid. Referring to the reply affidavit and to the specific pleadings, in this behalf as referred to hereinabove, a well considered direction was issued. 10. Unnecessarily on this ground this application has been filed with the sole object to defy the order dated 13.06.2018. The order dated 13.06.2018 in this behalf is quoted in a language extending fully protection to the rights of the parties by including important condition to the effect that the payment shall be without prejudice to the rights of the parties and any change in the worked out tentative amount shall be taken care of at the final hearing and disposal of the appeals. This ground projected for modification of the said direction vis-à-vis of Rs.142.95 crores is totally unfounded and accordingly rejected. 11. Regarding ground No.2 that 5% of the tentatively worked out of the balance amount of Rs.1074 crores was not required to be issued because the award is declaratory only therefore, Order 41 Rule 5 sub-rule (3) (c) of CPC is not applicable. 12. The contention of the learned counsel for the appellant that the award is declaratory so cannot be treated as a decree because the amount is not quantified is again without any justification. In the reply affidavit filed by the respondent, it is made clear that the balance payment of approximately Rs.1961.84 crores based on BOQ rates under the contract have been awarded by the learned Arbitrator by holding that the rates as per Clause 33(ii)(a) of the contract will be the applicable rates. The said award was upheld by disposing of the application under Section 34 of the Act of 1996 which is now under challenge in appeals before this Court. 13. The respondent has received the amount on the basis of mutually agreed provisional rate of Rs.75.93/cum/km. 80% of the said provisional rate of Rs.75.93/cum/km is Rs.60.74/cum/km whereas, the appellant has been making payments inclusive of the agreed escalation charges as per Clause 74 of the contract. 13. The respondent has received the amount on the basis of mutually agreed provisional rate of Rs.75.93/cum/km. 80% of the said provisional rate of Rs.75.93/cum/km is Rs.60.74/cum/km whereas, the appellant has been making payments inclusive of the agreed escalation charges as per Clause 74 of the contract. Precisely the respondent has stated that the payable amount for extra lead for transportation of sand and boulders is shown as Rs.645.92 crores out of which, the respondent has received Rs.428.41 crores only marginally increased from Rs.428.22 crores owing to some payments having been made by the appellant since the order passed on 13.06.2018. Therefore, even on this date applying the provisional rates as admitted to be payable by the appellant i.e. Rs.60.74/cum/km, the respondent is entitled to Rs.217.51 crores (as difference between the amount of Rs.645.92 crores and Rs.428.41 crores). The figure of Rs.571.17 crores as reflected by the applicant/appellant in the comparative table as annexed with the appeals is less than the amount now due. 14. Learned counsel for the respondent alleged that the contention of the learned counsel for the appellant that the award is declaratory, is totally imaginative argument which position is exposed by para 2.3 of the appeal at page 63 read with annexure 50 at page 406 of the appeal and also at page 10 read with annexure 3 at page 24 of the application for stay, wherein amount is shown quantified. This contention of the learned counsel for the respondent is well founded in view of the averments contained in para 2.3 of the appeal at page 63. 15. It is in the said background vide order dated 13.06.2018, in terms of Order 41 Rule 5 CPC only 5% of the tentatively worked out balance amount of Rs.1074 crores was directed to be deposited. It has to be made clear that at the time of hearing on 13.06.2018, on the basis of respective pleadings, tentatively a total amount of Rs.1074 crores + Rs.571.17 crores were worked out, out of Rs.571.17 crores Rs.428.41 crores were paid and balance out of Rs.571.17 crores was directed to be deposited whereas, out of the disputed amount of Rs.1074 crores, 5% was directed to be deposited. 16. The award passed by the arbitrator has been upheld while disposing of the application under Section 34 of the Act of 1996. 16. The award passed by the arbitrator has been upheld while disposing of the application under Section 34 of the Act of 1996. The amount has been quantified, therefore, to say that the award is only declaratory, for staying such order there was no requirement of issuing the direction for deposit under Order 41 Rule 5 CPC is misplaced. The award in effect is a decree, the amount payable in effect has been quantified therefore, for grant of stay, Order 41 Rule 5 CPC has to be strictly followed as has been followed. 17. Learned counsel for the respondent has also rightly pointed out that the appellants are not adhering to the Office Memorandum No.N-14070/14/2016-PPPAU dated 05.09.2016 issued by the Government of India, National Institution for Transforming India (NITI Aayog). Perusal of which reveal that taking note of the problems faced by the contractor mainly arising from the liquidity constrains caused on account of their payments not being released by the Government Departments/Public Sector Undertakings (PSUs) pursuant to the arbitral awards instructions have been issued. Instruction No.2.2 is relevant to be quoted:- “2.2. In case of claims where the PSU/Department has challenged the Arbitral Award already announced 75% of the award may be paid by the PSU/Department to the contractor/concessionaire against Bank Guarantee without prejudice to the final order of the Court in the matter under challenge. The payment may be made into a designated Escrow Account with the stipulation that the amount so released will be used, first, for payment of lenders’ dues, second, for completion of the project and then for completion of other projects of the same PSU/Department, as mutually agreed/decided. Any balance remaining in the escrow account subsequent to the settlement of lenders’ dues and completion of projects of the PSU/Department may be allowed to be used by the contractor/concessionaire with the prior approval of the lead banker and the Department/PSU.” 18. It is also relevant to quote para 2(c) of the Office Memorandum dated 06.12.2017 bearing No.N-14070/14/2016-PPPAU issued by the Government of India, NITI Aayog as under:- “2(c). Some of the Departments/PSUs have sought clarification with regard to adjustment of the pending liabilities under the contract against the payout amount to be made to the concessionaires/contractors. In this regard, it is stated that the intent of the Government decision is to inject the much needed liquidity into the construction sector for their revival. Some of the Departments/PSUs have sought clarification with regard to adjustment of the pending liabilities under the contract against the payout amount to be made to the concessionaires/contractors. In this regard, it is stated that the intent of the Government decision is to inject the much needed liquidity into the construction sector for their revival. This, inter alia, entails settlement of the lenders’ dues of the construction sector from the payout of arbitration awards. The Departments/PSUs should, therefore, not resort to adjustment of the pending liabilities under the contract or for any other contract against the payout amount.” 19. Pursuant to the arbitral award, challenge under Section 34 of the Act of 1996 by the appellant has been unsuccessful. As per the above referred Office Memorandum issued by the NITI Aayog, 75% of the work was to be paid, same position was not brought to the notice of the Court at the time when the order dated 13.06.2018 was passed. 20. Learned counsel for the respondent has rightly placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of “Kanpur Jal Sansthan and anr v. Bapu Constructions” reported in (2015) 5 SCC 267 . Para 18 of the reported judgment is advantageous to be quoted: “18. In Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co.3 this Court was dealing with the situation where the appellant municipality constituted and governed by the provision of the Gujarat Municipalities Act, 1963 had assailed a money decree in appeal and the High Court in appeal had directed stay of the execution of operation of the money decree subject to the condition that the appellant shall deposit a certain sum with interest by a particular date. In that context the Court adverted to Order 41 Rules 1(3) and 5(5) and opined thus: (SCC pp.2-3, para 6) “6. Order 41 Rule 1(3) CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the appellate court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit. Under Order 41 Rule 5(5), a deposit or security, as abovesaid, is a condition precedent for an order by the appellate court staying the execution of the decree. Under Order 41 Rule 5(5), a deposit or security, as abovesaid, is a condition precedent for an order by the appellate court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the appellate court to direct neither deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the appellate court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course a discretionary power, and is meant to be exercised in appropriate cases.” (emphasis supplied) 21. The order dated 13.06.2018 being a well considered order protecting the rights of each party, is not required to be modified. The application for modification as filed by the appellant for the stated facts, reasons and law has no merit, is accordingly dismissed.