JUDGMENT : M.R. Shah, J. As common question of law and facts arise in both these petitions and as such they arise out of impugned common judgment and order passed by the learned Commercial Court, Rajkot, both these petitions are heard, decided and disposed of together by this common judgment and order. 2. Special Civil Application No. 4753 of 2018 has been preferred by the petitioner herein original appellant Board of Trustees of Deendayal Port Trust (earlier known as KPT) for an appropriate writ, direction and order to quash and set aside the impugned common order dated 09.03.2018 passed by the learned Commercial Court, Rajkot passed in Commercial Civil Miscellaneous Application Nos. 25 of 2017 and 26 of 2017 as well as order dated 04.12.2017 passed by the learned Arbitral Tribunal passed under Section 17 of the Arbitration and Conciliation Act so far as it directs petitioner herein to deposit the amount towards debts due payable to the lender. 2.1. Special Civil Application No.4759 of 2018 has been preferred by the petitioner herein original appellant Board of Trustees of Deendayal Port Trust (earlier known as KPT) for an appropriate writ, direction and order to quash and set aside the impugned common order dated 09.03.2018 passed by the learned Commercial Court, Rajkot passed in Commercial Civil Miscellaneous Application No. 26 of 2017 as well as order dated 23.12.2017 passed by the learned Arbitral Tribunal so far as it permits the lender to retain the amount deposited pursuant to the order dated 04.12.2017 however as such by the said order dated 23.12.2017, the learned Arbitral Tribunal has modified/clarified its earlier order dated 04.12.2017. 3. The facts leading to the present Special Civil Applications in nutshell are as under: 3.1. That the petitioner (hereinafter referred to as the "DPT) is a body corporate constituted under the provisions of the Major Port Trusts Act, 1963. That the respondent was Special Purpose Vehicle incorporated by M/s IMC Ltd. as per the conditions of tender, for the purposes of the project and implementation of works provided in the Concession Agreement 18.02.2011. 3.2. That the DPT is engaged in the development of Kandla Port and Port related facilities at Kandla, Gujarat. That in order to cater to future dry cargo traffic, DPT had decided to undertake development of 4 Multipurpose Cargo Berths with Private Sector Participation on Build, Operate and Transfer framework. 3.2. That the DPT is engaged in the development of Kandla Port and Port related facilities at Kandla, Gujarat. That in order to cater to future dry cargo traffic, DPT had decided to undertake development of 4 Multipurpose Cargo Berths with Private Sector Participation on Build, Operate and Transfer framework. That the DPT issued a request for qualification on 2nd January, 2006, inviting interested parties to implement the project of development of Multipurpose Cargo Berth through Private Sector Participation on Build, Operate and Transfer Basis. One M/s. IMC Ltd amongst other interested parties made an application on 12.06.2006 to DPT in response to the Request for Qualification. That with respect to Berth 15, the bid of M/s. IMC Ltd was accepted and a letter of intent for Award of Concession was issued on 7.12.2010. That a concession Agreement was signed between Petitioner and Respondent on 18.02.2011. 3.3. That thereafter, dispute arose between the petitioner and the respondent and the DPT issued a notice on 1.7.2017 terminating the Concession Agreement taking note of persistent defaults by the concessionaire of its obligations in accordance with the provisions of the concession agreement and on the ground that continuation of the agreement was not in public/national interest. 3.4. That in view of the disputes, as per Article 19 of the Concession Agreement dated 18.02.2011, Arbitral Tribunal has been constituted for adjudication of the disputes under the concession agreement. 3.5. That first meeting of the Arbitral Tribunal was held on 26.08.2017. The petitioner DPT filed statement of claim on 26.08.2017. The claims of DPT were broadly categorized under the following heads. (A) Nonpayment of license fees as per Article 9.1. (B) Nonpayment of liquidated damages as per Article 3.5. (C) Nonpayment of remuneration of independent engineer as per Article 5. (D) Nonpayment of liquidated damages as per Article 7.3. (E) Nonpayment of royalty as per Article 9.2. (F) Nonpayment/non reimbursement of taxes and duties as per Article 12. (G) Nonpayment of cost towards assessing the replacement cost. (H) Losses and damages caused to the authority. 3.6. The claims were divided into two components i.e. (i) Actual quantified claims of approximately 65 crore and Interest under the Concession Agreement and (ii) Future claims. 3.7. (F) Nonpayment/non reimbursement of taxes and duties as per Article 12. (G) Nonpayment of cost towards assessing the replacement cost. (H) Losses and damages caused to the authority. 3.6. The claims were divided into two components i.e. (i) Actual quantified claims of approximately 65 crore and Interest under the Concession Agreement and (ii) Future claims. 3.7. It appears that before filing of the statement of defence and counterclaim, the respondent preferred application purportedly under Section 17 of the Arbitration and Conciliation Act, 1996 seeking inter alia, "Direct the Claimant to forthwith pay the amount of Rs. 92,82,32,724/-, (being 90% of the Debt Due to the Lender, State Bank of India in accordance with Article 17.1(b) of the Concession Agreement along with interest as per Article 17.5 of the Concession Agreement." The said application was vehemently opposed/contested by the petitioner herein. The petitioner submitted its reply. The respondent also filed the rejoinder to the said application somewhere in the month of October 2017. That thereafter, the respondent herein filed statement of defence and the counter claim inter alia, seeking sums towards (i) the costs incurred by JRE for the project, (ii) loss of profit in relation to the project and (iii) consequential interest arising therefrom. 3.8. That the learned Arbitral Tribunal heard Section 17 application on 13.11.2017 and the order was reserved by the learned Tribunal. 3.9. That thereafter, by order dated 04.12.2017, the learned Tribunal disposed of the said Section 17 application by directing the claimant KPT(DPT) to deposit an amount of Rs.92,82,32,724/- by way of Debt Due to the Lender in an Escrow Account with the State Bank of India, to be deposited on or before 19.12.2017. At this stage, it is required to be noted that as such the learned Tribunal disposed of Section 17 application in the terms indicated in para 16 of the order. Para 16 reads as under: “In our opinion, it would meet the ends of justice if the Claimant KPT is directed to deposit an amount of Rs. 92,82,32,724/- by way of Debt Due to the Lender in an Escrow Account with the State Bank of India. We have been told that the Escrow Account is already there and is under the control and management of the State Bank of India. The amount so deposited in Escrow account shall earn interest. 92,82,32,724/- by way of Debt Due to the Lender in an Escrow Account with the State Bank of India. We have been told that the Escrow Account is already there and is under the control and management of the State Bank of India. The amount so deposited in Escrow account shall earn interest. The principal amount and the interest shall remain available for appropriation and disbursal in accordance with the Award finally made by the Tribunal. The amount so deposited with the SBI having reached its coffers available to be utilized by it, there should be no difficulty in SBI giving a discharge and as such the Transfer from shall be free from encumbrance." 3.10. While disposing of Section 17 application, in terms of the above, the learned Arbitral Tribunal also observed that all the process shall be subject to final award passed by the learned Tribunal. 3.11. It appears that thereafter by Email dated 18.12.2017, the Advocates for M/s. JRE had informed the Hon'ble Tribunal, which read as under: "We refer to the Order dated December 4, 2017 passed by this Hon'ble Tribunal ("Order"), which was forwarded by us to State Bank of India ("SBI"). We attach herewith a letter dated December 12, 2017 addressed by SBI to the parties, whereby SBI has stated that since the amount deposited by Kandla Port Trust ("KPT") pursuant to the Order will be deposited in the Escrow Account without provision for SBI to adjust the amount towards debt due, SBI will be unable to release the encumbrance over the project site and project assets. We also attach herewith a letter dated December 14, 2017 addressed by KPT to SBI requesting for a confirmation regarding the method by which the 90% debt due required to be paid by KPT in accordance with the Order may be deposited in the Escrow Account. In response to KPT's letter dated December 14, 2017, SBI has addressed a letter dated December 15, 2017 (copy attached), wherein SBI has provided the details of the Escrow Account for deposit of amounts and has also indicated that the said Escrow Account is a current account, which is a non-interest bearing account. Therefore to earn interest the amount is to be kept in a Fixed Deposit account with definite period. Therefore to earn interest the amount is to be kept in a Fixed Deposit account with definite period. Further SBI also stated that unless SBI is allowed to adjust the amount so remitted towards the outstanding debt SBI would not be in position to treat the remittance as a discharge of KPT's obligation to pay the debt due." 3.12. That Email/communication dated 18.12.2017 was replied by the DPT vide Email dated 19.12.2017 inter alia, pointing out that "we refer to the order dated December 4, 2017 passed by this Hon'ble Tribunal (order). Pursuant to the order, we have written an email on 19.12.2017 to JRE Infra Port Pvt., Ltd., (JRE) and informed them that Deendayal Port Trust (DPT) has agreed to implement the order as per para 18 read with para 16 and requested them to depute their officials to consummate the formalities pertaining to transfer of Project Site as contemplated under the Concession Agreement (copy enclosed).With a clear understanding that this order will not be modified or altered at any stage DPT has followed it with in its letter and spirit, on 19.12.2017, DPT has deposited the amount of Rs.92,82,32,724.00 in the following account (Account statement copy enclosed): Account No. 31834438649 Beneficiary JRE Infra Pvt. Ltd (Escrow Account) Name of Bank CAG Branch Chennai and Branch IFSC Code SBIN0009999 Officials of DPT has visited the Project Site at 12 O'clock on 19.12.2017 to takeover of the possession of the Project Site, however the officials of JRE present at the site, on instructions from their advocate has refused to hand over the Project Site. We understand that the order speaks about reciprocal obligations and DPT has complied with its part, but JRE has refused to comply with its obligations. On 19.12.2017 at 13 hours, we have received an email from JRE mentioning that their advocate has sent an email to the Hon'ble Tribunal seeking clarification in the matter. We would like to mention that by depositing the amount as per the directions of the tribunal, DPT has already put itself in an irreversible position and now we understand that through its email dated 18.12.2017, JRE is seeking modification/alteration in the order. We would like to mention that by depositing the amount as per the directions of the tribunal, DPT has already put itself in an irreversible position and now we understand that through its email dated 18.12.2017, JRE is seeking modification/alteration in the order. We are in the process of collecting information and will revert to the email ASAP and without prejudice to our rights and remedies including seeking refund of the deposited amount with interest, we request the Hon'ble Tribunal to direct JRE to hand over the Project Site." 3.13. That the aforesaid Email was replied by the respondent vide its communication of 20.12.2017, in which, it was stated by the respondent that "it would appear that SBI and KPT have reached an impasse and our Client has been caught in the crossfire. It would be most appropriate, expedient and in the interest of justice that the Hon'ble Tribunal hold an urgent short hearing (including either by way of a videoconference or a teleconference) in the ensuing Christmas holidays, where the officials of SBI and/or their advocates also participate so that a mutually acceptable resolution of the issue can be reached at. We would also humbly request KPT and SBI (who are public sector entities) to not take any precipitative action/steps, until the Hon'ble Tribunal passes further directions." 3.14. It appears that thereafter the lender Bank SBI issued a letter dated addressed to the Chief Engineer DPT inter alia stating that "as you are aware as per the directions of the Tribunal payment is placed in non interest bearing escrow account. The termination payment in order to earn interest needs to be transferred from escrow account to a fixed deposit account. Accordingly, we request you to provide us direction from the Tribunal." 3.15. The termination payment in order to earn interest needs to be transferred from escrow account to a fixed deposit account. Accordingly, we request you to provide us direction from the Tribunal." 3.15. That thereafter, the petitioner received the copy of the impugned order 23.12.2017, vide Email dated 23.12.2017, by which, learned Tribunal purported to be in continuance of earlier order dated 04.12.2017 issued further directions as under: (i) That the respondent shall handover, and the claimant shall takeover, the project and the site to the Claimant on a date mutually agreed by the two; (ii) That such transfer shall be deemed to be without encumbrance i.e. free from encumbrances so far as the parties are concerned; (iii) For all practical purposes, so far as the present proceedings are concerned, the deposit of Rs.92,82,32,724/- by KPT/DPT with the State Bank of India shall be treated as discharge of obligation of the Claimant KPT to pay the amount of Debt Due to the Lender under Article 17.1(b) of the Concession Agreement dated 18.02.2011." 3.16. That on receipt of the further order dated 23.12.2017, the petitioner submitted application dated 23.12.2017 and sought clarification of the orders passed by the learned Tribunal dated 04.12.2017 and 23.12.2017 to the extent that the orders passed by the learned Tribunal are purely interlocutory and would not affect the right of claimant in respect of the principal amount and interest and same shall remain available for appropriation and disbursal in accordance with award made by the Tribunal. In the said application, it was submitted that said clarification is necessary and vital as otherwise award, if any, in favour of claimant may not be enforceable against the respondent as the respondent is Special Purpose Vehicle with no substantial assets. That in response to the said application, by order dated 25.12.2017, the learned Tribunal disposed of the said application by observing inter alia that "the orders dated 4.12.2017 and 23.12.2017 are clear and self explanatory. No further clarification is called for, for the present." It appears that thereafter, the petitioner DPT approached this Court by way of Special Civil Application No. 23338 of 2017. In the said Special Civil Application, the petitioner DPT prayed for an order restraining SBI from appropriate and adjust the amount of Rs. 92,82,32,724/- from the escrow account of the parties by submitting that if same is allowed to happen, would render the petitioner remediless. In the said Special Civil Application, the petitioner DPT prayed for an order restraining SBI from appropriate and adjust the amount of Rs. 92,82,32,724/- from the escrow account of the parties by submitting that if same is allowed to happen, would render the petitioner remediless. That the learned Single Judge vide order dated 27.12.2017 issued notice and the injunction against the lender SBI from appropriating aforesaid amount of Rs.92,82,32,724/- from the escrow account of the parties maintained with the respondent bank. That order dated 23.12.2017 passed by the learned Single Judge passed in SCA No. 22238 of 2017 was subject matter before the Division Bench by way of Letters Patent Appeal No. 17 of 2018. That the Division Bench vide order dated 19.01.2018 disposed of the Letters Patent Appeal as well as Special Civil Application by permitting the petitioner herein to move appropriate application before the Appellate Forum and directed that the adinterim order passed by the learned Single Judge dated 27.12.2017 shall be continued for a further period of two weeks. At this stage, it is required to be noted that in the meantime, the petitioner had already approached the learned Commercial Court under Section 37 of the Arbitration and Conciliation Act challenging the orders 4.12.2017 and 23.12.2017 and therefore, the Division Bench disposed of the aforesaid Letters Patent Appeal as well as Special Civil Application. 3.17. That by impugned common judgment and order dated 09.03.2018, the learned Commercial Court, Rajkot has rejected the appeals under Section 37 of the Arbitration and Conciliation Act. That thereafter, being aggrieved and dissatisfied with the common judgment and order passed by the learned Commercial Court, Rajkot dated 09.03.2018 passed in Commercial Civil Miscellaneous Application Nos. 25 and 26 of 2017, the petitioners approached the Hon'ble Supreme Court under Section 37(3) of the Arbitration Act. That by order dated 19.03.2018 the Hon'ble Supreme Court did not entertain the same on the ground that against the order dated 09.03.2018 passed by the learned Commercial Court, Rajkot passed in Commercial Civil Miscellaneous Application Nos. 25 and 26 of 2017, the petitioner can approach the High Court under Article 226 and 227 of the Constitution of India. That, while relegating the petitioner DPT to approach this Court, the Hon'ble Supreme Court continued the adinterim relief granted earlier which has been continued till date. 25 and 26 of 2017, the petitioner can approach the High Court under Article 226 and 227 of the Constitution of India. That, while relegating the petitioner DPT to approach this Court, the Hon'ble Supreme Court continued the adinterim relief granted earlier which has been continued till date. Thereafter, common petitioner DPT has preferred present Special Civil Application under Articles 226 & 227 of the Constitution of India challenging the impugned common order passed by the learned Commercial Court, Rajkot dated 09.03.2018 passed in Commercial CMA Nos. 25 of 2017 & 26 of 2017 as well as order passed by the learned Arbitral Tribunal dated 04.12.2017 as well as 23.12.2017 passed in Section 17 application. 4. Shri Mihir Joshi, learned counsel has appeared with Shri Dhaval Vyas, learned advocate for the DPT and Shri R.S. Sanjanwala, learned counsel has appeared with Shri Dhaval Shah, learned advocate for the no.1 herein. 5. At the outset, it is required to be noted that in the present petition, the petitioner-DPT has challenged both the orders dated 04.12.2017 as well as subsequent order dated 23.12.2017 passed by the learned Arbitral Tribunal passed in Section 17 application submitted by the respondent herein. 6. Shri Mihir Joshi, learned counsel for the petitioner-DPT while challenging the order dated 04.12.2017 passed by the learned Tribunal has vehemently submitted that the direction made in the order dated 04.12.2017 as such are beyond the scope of Section 17 of the Arbitration and Conciliation Act, inasmuch direction granted are final reliefs sought in the counterclaim. 6.1. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that in the counterclaim, M/s. JRE respondent herein has sought award inter alia, of Rs. Rs.252,30,07,148/- only which includes sum of Rs. Rs.92,82,32,724/- claims 90% of the amount availed by the M/s. JRE original respondent from its lender. It is submitted that therefore, Rs.92,82,32,724/- as such is part of the final award sought vide principal reliefs prayed in the counter claim by M/s. JRE. It is submitted that DPT has emphatically contested the claim. It is submitted that direction to deposit the same towards liability of M/s. JRE to third party under the loan agreement shall be final in nature so far as DPT, whilst executing deposit claim to the said extent of M/s. JRE prior to its adjudication. It is submitted that DPT has emphatically contested the claim. It is submitted that direction to deposit the same towards liability of M/s. JRE to third party under the loan agreement shall be final in nature so far as DPT, whilst executing deposit claim to the said extent of M/s. JRE prior to its adjudication. It is submitted that therefore, order dated 04.12.2017 inter alia directing DPT to deposit the sum claimed as debt due (which is disputed by the petitioner) without adjudicating the said dispute as to the quantification to the same towards debt due, as also lowest amount as per Article 17(b) of the Concession Agreement, which DPT is required to pay/deposit towards compensation to the concessionaire. 6.2. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that as such the petitioner DPT has categoricaly and emphatically denied that the book value and the actual project cost for berth 15 is in the range of approximately Rs. 200-250 crore, as alleged or otherwise. It is submitted that therefore, it is specifically denied that the KPT/DPT is required to pay 90% of the debt due to JRE on the transfer date, which amounts to Rs. 92,82,32,724/-, as alleged or otherwise. 6.3. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that DPT/KPT has specifically denied that DPT has to pay compensation under article 17 of the Concession Agreement. It is submitted that therefore, the liability to pay any amount under Article 17.1(b) of the Concession Agreement of the DPT/KPT is yet to be determined by the learned Tribunal. It is submitted that therefore, the learned Tribunal has materially erred in passing the order dated 4.12.2017 solely relying upon Article 17.1(b) of the Concession Agreement and that too without final determination/adjudication of the amount towards debt due payable under Article 17.1(b) of the Concession Agreement. 6.4. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that Article 17.1(b) provides that in the concessionaire event of default, the concessioning authority shall pay loss of (1) book value (2) 90% debt due and (3) only project costs. 6.4. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that Article 17.1(b) provides that in the concessionaire event of default, the concessioning authority shall pay loss of (1) book value (2) 90% debt due and (3) only project costs. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that book value under the concession agreement would be the aggregate written down value as on the date of issue of termination of notice in the books of concessionaire of the tangible assets forming part of, fixed or attached to the ground, created, installed or provided by the concessionaire and comprised in project facilities and services, which in the reasonable judgment of a expert are capable of being put to use/utilized by the concessioning authority. It is submitted that there is a serious dispute with respect to the assets comprised in project facilities and services as capable of being put to use/utilized by the concessioning authority. It is submitted that therefore, unless evidence is led as to the condition of the assets and its usability by the concessioning authority and of prudent valuation of the assets thereto, the dispute persists as to the book value of the assets under the concession agreement and as to whether 90% of the debt due is the lowest of the three eventualities as per Article 17.1(b) of the concession agreement. 6.5. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that even otherwise the directions in Section 17 application were sought citing lis/issue pertaining to third parties to the arbitration proceeding i.e. lender and "other group companies" of M/s. JRE, which as such was not subject matter of the Arbitration Proceedings. It is submitted that impugned directions were sought principally to enable to discharge M/s JRE and its "other group companies" from the obligations, securities and guarantees under the Loan Agreement from the Lenders, which as such was not the subject matter of the Arbitration Proceedings. It is submitted that impugned directions were sought principally to enable to discharge M/s JRE and its "other group companies" from the obligations, securities and guarantees under the Loan Agreement from the Lenders, which as such was not the subject matter of the Arbitration Proceedings. It is submitted that the issues with the lenders under the finance documents or otherwise, and the securities by the "other group companies" of JRE both of which are not a party to the arbitration proceeding, is not the subject matter of arbitration before the Tribunal and therefore, in view of the underlining cause and in view of the nature of disputes, the application Section 17 of the Arbitration and Conciliation Act was not maintainable. 6.6. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that even otherwise the JRE is a special purpose company incorporated for the purposes of implementation of present project only and possesses no assets or finance at all, therefore, there is no question of JRE indulging in any other businesses or availing financial advances from institutions and as such the application was preferred in order to provide discharge to "other group companies". It is submitted that therefore, apparently the alleged irreparable loss or balance of convenience, as cited, was of the "other group companies" which were not a party to the proceeding and therefore, claim of convenience or irreparable injury to such entities cannot be a relevant factor for consideration of the equities between the present parties. 6.7. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that on clear understanding that direction of para 16 of the order dated 04.12.2017 would not be modified or altered at any stage, "without prejudice of the rights and remedies" DPT had agreed to follow the directions made in the order dated 04.12.2017 in letters and spirit. It is submitted that the compliance of the directions made in the order dated 04.12.2017 cannot be cited to the prejudice of DPT while seeking modification or alteration of directions made in para 16 of the order dated 04.12.2017. It is submitted that if the directions made in Para 16 are reviewed or modified or further directions are made to the prejudice of DPT, the right to seek redress against the order of 4.12.2017 cannot be restricted. 6.8. It is submitted that if the directions made in Para 16 are reviewed or modified or further directions are made to the prejudice of DPT, the right to seek redress against the order of 4.12.2017 cannot be restricted. 6.8. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that even otherwise the learned Tribunal has materially erred in passing order dated 04.12.2017 on conditions to deposit disputed the amount of debt due. It is submitted that envisaging the situation like the present, equitable redress for delayed payment (Article 17.5) is encompassed in the concession agreement while M/s JRE should forthwith hand over the possession of the Project facilities to DPT, inasmuch as every day of non-utilization of the berth at the government port is a waste of the natural resource. It is submitted that in the facts, the direction to transfer the possession of the government asset ought to have been passed without condition to deposit (disputed) amount of debt due. 6.9. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that clauses of agreement may not be read in the manner, whereby undue advantage is provided to one party while recovery of government monies from private commercial entities is rendered unexecutable. It is submitted that on construction of Articles 17.1b r/w 17.5 there is no lis or liability of DPT to pay or towards the lender, rather the amount, if deposited by DPT, is for and on behalf of and in discharge of liability of M/s JRE towards the lenders. It is submitted that the liability under the concession agreement of DPT visa vis M/s JRE is yet to be adjudicated, inasmuch as sum payable by M/s JRE to DPT is required to be adjusted against the sum which may be adjudicated as 90% of the debt due by the learned Tribunal. Making above submission, it is requested to quash and set aside direction issued by the learned Tribunal to transfer the possession of the government assets on conditions to deposit Rs.92,82,32,724/- being 90% of the debt due. 7. Making above submission, it is requested to quash and set aside direction issued by the learned Tribunal to transfer the possession of the government assets on conditions to deposit Rs.92,82,32,724/- being 90% of the debt due. 7. Now, so far as challenged to the subsequent order dated 23.12.2017 passed by the learned Tribunal is concerned, it is vehemently submitted by Shri Joshi, learned counsel for the petitioner that subsequent order dated 23.12.2017 purported to be in continuance of the earlier order dated 4.12.2017 is not sustainable under law and same is without hearing the petitioner or his lawyers and also on the ground that same is not sustainable under law. 7.1. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that while application filed under Section 17 of the Act, M/s. JRE prayed by way of interim measures to direct the claimant to forthwith pay the amount of Rs. 92,82,32,724/-, (being 90% of the Debt Due to the Lender, State Bank of India in accordance with Article 17.1(b) of the Concession Agreement along with interest as per Article 17.5 of the Concession Agreement. It is submitted that such relief was not granted by learned Tribunal while passing the order dated 04.12.2017. It is submitted that on the contrary while passing the order dated 04.12.2017, the learned Tribunal specifically observed and directed as under: "In our opinion, it would meet the ends of justice if the Claimant KPT is directed to deposit an amount of Rs. 92,82,32,724/- by way of Debt Due to the Lender in an Escrow Account with the State Bank of India. We have been told that the Escrow Account is already there and is under the control and management of the State Bank of India. The amount so deposited in Escrow account shall earn interest. The principal amount and the interest shall remain available for appropriation and disbursal in accordance with the Award finally made by the Tribunal." 7.2. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that JRE did not challenge the said order dated 4.12.2017, which as such did not grant reliefs as prayed for by the JRE. It is submitted that by email of 18.12.2017 (indirectly) without challenging order dated 4.12.2017, JRE sought directions which as such were not granted by the learned Tribunal in the order dated 04.12.2017. 7.3. It is submitted that by email of 18.12.2017 (indirectly) without challenging order dated 4.12.2017, JRE sought directions which as such were not granted by the learned Tribunal in the order dated 04.12.2017. 7.3. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that the order dated 23.12.2017 has been passed without hearing the petitioner Port or its lawyers and therefore is vitiated. It is submitted that the order of 23.12.2017 materially alters and modifies the clear operative directions made in the order dated 4.12.2017 which inter alia provides, the sum alleged as debt due was to be 'deposited in escrow account', which was to 'earn interest', while 'the principal amount and interest shall remain available for appropriation and disbursal in accordance with the award finally made by the Tribunal.' 7.4. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that the subsequent order of 23.12.2017 has been passed on email dated 18.12.2017 made by the Lawyers of M/s JRE. It is submitted that the email by the lawyers of M/s JRE could not have been accepted as application for review or modification of the directions made in the order of 4.12.2017 or for further directions. DPT had replied to the said email stating, 'We are in the process of collecting information and will revert to the email ASAP', whilst the lawyers of M/s JRE also had sought a hearing on the contents of the email (of 18.12.2017) vide the email of 19.12.2017. It is submitted that therefore, M/s JRE was also conscious that no directions at all could have been ordered unless the parties were heard. 7.5. It is vehemently submitted by Shri Joshi, learned counsel for the petitioner DPT that the directions made in the order of 4.12.2017 ought not to have been altered and modified, pertinently as the directions were clear and accordingly understood by all parties i.e. DPT, JRE and SBI (letter of 12.12.2017), whilst M/s JRE had not challenged such directions which clearly did not permit the appropriation of sum deposited in the escrow account pursuant to the order of 4.12.2017 against the Debt Due by SBI (which is not a party to the Arbitration proceeding). 7.6. It is further submitted that the directions made in the order dated 23.12.2017 as such are beyond the scope of Section 17 of the Arbitration and Conciliation Act, 1996. 7.6. It is further submitted that the directions made in the order dated 23.12.2017 as such are beyond the scope of Section 17 of the Arbitration and Conciliation Act, 1996. It is submitted that the directions under Section 17 are always in the nature of 'interim measure' as distinguished from 'an all time or permanent protection'. It is submitted that the directions to deposit sums towards the liability of M/s JRE to a third party while observing that the amount deposited is not going to be returned by the lender in any case as such shall be final in the nature, whilst irreversibly executing the claim to the said extent of M/s JRE prior to its adjudication. 7.7. It is further submitted that Section 17 of the Act inter alia provides for 'interim measures' by the Arbitration Tribunal, the powers which are purely interlocutory in nature and cannot partake as final directions, that too before adjudication of disputes between the parties. It is submitted that the directions and observations made by Hon'ble Tribunal in the order of 23.12.2017 irreversibly executes finally the claim of Rs. 92 Cr. as 90% of the debt due to the lenders, prior to its adjudication. 7.8. It is further submitted that the direction to deposit alleged dues payable by M/s JRE to a third party to the Arbitration proceeding and appropriation thereof by the said third party is not 'interim measure' U/s 17 of the Act, as such is a final direction which cannot be restituted as M/s JRE is a financially defunct company and the Hon'ble Tribunal would not be able to provide binding directions for refund/adjustment to the Bank. 7.9. It is further submitted that the issues with the lenders under the finance documents or otherwise, and the securities by 'the other group companies' of JRE both of which are not a party to the arbitration proceeding, is not the subject matter of arbitration before the Tribunal, therefore, in view of the underlining cause and in view of the nature of disputes, the application was not maintainable U/s 17 of the Act. It is submitted that the consequence of permitting the lender - third party to the proceeding, to appropriate and finally adjust the amount towards the debt due payable by M/s JRE, shall create an irreversible situation and enable final and permanent discharge to third parties by the lender prior to adjudication of disputes of the sums towards debt due, at the instance of M/s JRE. 7.10. It is further submitted that it is an admitted fact that M/s. JRE is a special purpose company incorporated for the purposes of present project only. M/s JRE has no assets or financial standing at all and as such is a financially defunct company. Thus, it would be impossible to secure or enforce the directions (even) of refund of the said sums deposited in terms of the order of 4.12.2017 by the Hon'ble Tribunal, while the Hon'ble Tribunal would not be able to provide binding directions for refund/adjustment to the Bank. 7.11. It is further submitted by Shri Joshi, learned counsel for the petitioner DPT that even otherwise as per Article 16.5(a) read with Article 18.2, M/s JRE is under absolute obligation to handover the project site, port assets, the project and project facilities and services to the Concessioning Authority. It is submitted that M/s JRE has not handed over the possession of the project facilities, port assets and project site to DPT despite clear directions made by the learned Tribunal. It is submitted that admittedly no charge could be or has been created on the project site and the port assets and therefore the possession thereof cannot be withheld by the M/s. JRE. It is submitted that even if the issues are not settled with the lender, M/s JRE was obliged to hand over the possession of the project facilities with or without encumbrance to DPT. It is further submitted by Shri Joshi, learned counsel for the petitioner DPT that only 12 vessels have been handled in the year 2017 at Berth 15. It is submitted that the berth has remained non-operational from the date of termination of the concession agreement. It is further submitted by Shri Joshi, learned counsel for the petitioner DPT that only 12 vessels have been handled in the year 2017 at Berth 15. It is submitted that the berth has remained non-operational from the date of termination of the concession agreement. It is submitted that as such M/s JRE is not in a position to operate the facilities, it would not be in the interest of parties as also in the national interest to keep the berth idle without generating revenue and/or not handling the vessels arriving at the Government Port, whilst the risk of the idle assets being deteriorated. It is submitted that if at all any award is passed in favour of M/s. JRE in that case, the same is recoverable from the DPT which is established under the Major Port Trust Act which is a statutory body. Making above submissions, it is requested to quash and set aside the subsequent order dated 23.12.2017. Making above submissions, it is requested to quash and set aside the impugned orders passed by the learned Commercial Court, Rajkot dated 9.3.2018 passed in Commercial CMA Nos. 25 of 2017 & 26 of 2017 on quashing and setting aside the orders dated 04.12.2017 and 23.12.2017 passed by the learned Tribunal passed in Section 17 application. 8. Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent M/s. JRE has vehemently submitted that in the facts and circumstances of the case the orders passed by the learned Arbitral Tribunal both dated 04.12.2017 and 23.12.2017 are just and proper and absolutely in consonance with the relevant provisions/clauses of the Concession Agreement, the learned Commercial Court has rightly rejected the Commercial Civil Miscellaneous Applications and has rightly not interfered with the same. 8.1. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent M/s. JRE that orders dated 04.12.2017 and 23.12.2017 passed by the learned Arbitral Tribunal which is adjudicating main dispute between the petitioner and the respondent which arise under the concession agreement dated 18.02.2011 for development of Multipurpose Cargo on a Build Operate Transfer Basis for 30 years. It is submitted that under the Concession Agreement, JRE has created/constructed a Cargo Jetty of size 300 meters X 55 meters for vessels to berth alongside for discharging/loading the cargo and also developed Marshy Land of about 55 acres to set up Cargo Handling infrastructure for operating the Jetty expending in excess of Rs.250 Crore towards the same. The entire land of 55 acres was marshy land which was developed by JRE and JRE also constructed the Jetty on the sea by driving piles into the seabed. It is submitted that as is evident from the said photographs, JRE has created a substantial assets on the sea water and developed the said marshy land provided by KPT. 8.2. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that M/s. JRE has incurred a project cost of over Rs.252 Crores to develop the Jetty. This Project cost has been certified by JRE's auditors and verified by an independent auditor appointed by KPT. 8.3. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that JRE obtained financial assistance from State Bank of India ("SBI") at the commencement of the Project, with the knowledge and consent of KPT - as per the provisions of the Concession Agreement. One of the Conditions Precedent under Article 3.1 (a)(vii) required JRE to provided its Financial Plan and Financing Document for the Project including the loan agreement entered into between JRE and SBI, to KPT. Thus, KPT is fully aware of the existing terms of the loan and Debt Due to SBI from KPT. 8.4. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that after commencement of operations of the Project, disputes arose between JRE and KPT on account of KPT's failure to fulfill its obligations and pursuant thereto KPT has invoked arbitration and raised false disputes to wriggle out of its breaches under the Concession Agreement. Claims and counterclaims have been filed by both parties in the arbitration (which relate to the operations of the Project). It is only after the commencement of the arbitration, KPT terminated, KPT terminated the Concession Agreement by a notice dated July 1, 2017. Claims and counterclaims have been filed by both parties in the arbitration (which relate to the operations of the Project). It is only after the commencement of the arbitration, KPT terminated, KPT terminated the Concession Agreement by a notice dated July 1, 2017. It is submitted that this termination was accepted by JRE as a repudiatory breach by KPT and it has reserved its rights to claim damages from KPT. 8.5. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that irrespective of the issue as to which Party's default lead to termination of the Concession Agreement, (though it is the specific case on behalf of the JRE that it was the then KPT who have committed defaults and breaches and not JRE) there is an independent mechanism provided in the Concession Agreement regarding the transfer of the Project Site, Port's Assets, the Project Facilities and Services back to KPT, upon payment of some value by KPT for such Project Assets developed by JRE. It is submitted that this payment has to be made to SBI, which currently has a charge on the Project Assets. It is submitted that upon release of the charge, the Project Assets would be transferred to KPT, as required by the Concession Agreement. It is submitted that this transfer has no bearing on the main arbitration/disputes pending between KPT and JRE and must be complied with by KPT under the express provisions of the Concession Agreement, even assuming that JRE is at fault(whilst expressly denied). 8.6. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that on conjoint reading of the relevant clauses of the Concession Agreement makes it clear that upon termination of the Concession Agreement, KPT has to pay an undisputed amount of minimum compensation to JRE (on the assumption that JRE had committed an Event of Default). It is submitted that KPT therefore, cannot seek to defer the performance of its obligations till the arbitration proceedings are concluded and/or take a stand that the compensation payable by KPT will be adjusted in accordance with the final award passed by the learned Tribunal. 8.7. It is submitted that KPT therefore, cannot seek to defer the performance of its obligations till the arbitration proceedings are concluded and/or take a stand that the compensation payable by KPT will be adjusted in accordance with the final award passed by the learned Tribunal. 8.7. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that the amount of debt due compensation to be paid by KPT has never been denied or disputed by the KPT earlier. It is submitted that the same is evident by letters dated 1.7.2017, 2.8.2017, 5.8.2017, 28.9.2017 and 29.9.2017. It is submitted that as such on August 1, 2017, JRE submitted the information/documents sought by KPT under the requisition notice. That thereafter, on September 22, 2017, at the request of KPT, JRE resubmitted information in response to KPT's requisition notice including SBI's certificate of debt due and all the details to ascertain the Book Value of the Project. It is submitted that the details regarding the debt due annexed and the details regarding book value were also annexed to the letter dated September 22, 2017. It is submitted that at no point of time KPT challenged the same. It is submitted that it is only on September 29, 2017 that the KPT representative orally informed JRE when they arrived at the Project Site for the purpose of taking over possession that they would not pay 90% of the debt due to SBI. It is submitted that at this stage also, the KPT did not dispute the quantum of payment to be made. It is submitted that only dispute raised by the KPT and the sole ground on which KPT refused to pay the compensation was that KPT had claims against JRE, for which, it had invoked arbitrariness under Clause 19 of the Concession Agreement. 8.8. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that on account of KPT's refusal to pay the compensation under the Concession Agreement on September 29, 2017, JRE filed an application seeking interim relief's from the Tribunal. It is submitted that before the learned Tribunal, KPT did not dispute the quantum of the Debt due by providing an alternate figure and merely denied the averments made by JRE in this regard. It is submitted that before the learned Tribunal, KPT did not dispute the quantum of the Debt due by providing an alternate figure and merely denied the averments made by JRE in this regard. It is submitted that the KPT also never disputed that both the book value of the assets to be transferred by JRE to KPT on the transfer date or the Actual Project Cost incurred by JRE were higher than 90% of the debt due. It is submitted that because KPT was aware that its own independent auditor had confirmed that the actual project cost was over Rs.252 crores and that the book value of the immovable assets created by JRE was in excess of Rs.240 crore at March 31, 2016. It is submitted that therefore, the KPT actually aware and accepted that 90% of the debt due was the lowest of three alternatives contemplated under Article 17.1(b) of the Concession Agreement and therefore, never raised nay dispute or request of adjudicate on which of three figures was the lowest. It is submitted that in fact the KPT did not make any submission disputing debt due before the learned Tribunal has been clearly and rightly observed by the learned Commercial Court. It is submitted that therefore, KPT cannot challenge the quantum of the debt due or allege that the book value may be lower than the debt due at this belated stage now. It is submitted this is clearly an afterthought not based on any contemporaneous correspondence and/or the pleadings and contrary to the material on record. 8.9. It is further submitted by Shri R.S. Sanjanwala, learned counsel appearing on behalf of the respondent that as such the petitioner had already complied with the order dated 04.12.2017 and accepted the same unconditionally. It is submitted that therefore, it is not open for the petitioner to challenge the first order dated 04.12.2017 as it appears that till 19.12.2017 the petitioner was never aggrieved by the order dated 04.12.2017 and deposited the entire amount as directed by the learned Arbitral Tribunal. It is further submitted by Shri Sanjanwala, learned advocate for the respondent that even otherwise the first order dated 01.12.2017 is absolutely in accordance with the concession agreement, more particularly, considering Article 17.1(b) of the Concession Agreement. It is further submitted by Shri Sanjanwala, learned advocate for the respondent that even otherwise the first order dated 01.12.2017 is absolutely in accordance with the concession agreement, more particularly, considering Article 17.1(b) of the Concession Agreement. It is further submitted by Shri Sanjanwala, learned advocate for the respondent that as such by passing final order dated 04.12.2017, the learned Tribunal specifically observed that pending adjudication of the claims and cross claims between KPT and JRE, KPT is bound to discharge its obligation under Article 17.1(b) of the Concession Agreement, by making payment to SBI. It is submitted that as such escrow account, in which, amount was directed to be deposited vide order dated 04.12.2017 was being operated under the concession agreement and it was merely current account. 9. Now, so far as challenge to the clarificatory second order dated 23.12.2017 by the petitioner is concerned, it is vehemently submitted by Shri Sanjanwala, learned advocate for the respondent that by the subsequent order dated 23.12.2017, earlier order dated 04.12.2017 has not been modified and/or altered. It is submitted that on the contrary it has only been clarified by learned Tribunal in light of the correspondence addressed by SBI and KPT. It is submitted that since hearing has already been granted to the parties and written statement were also filed earlier, the learned Tribunal deemed fit to pass order to clarify its order dated 04.12.2017. It is submitted that the clarification order dated 23.12.2017 is to be read in continuance of order dated 04.12.2017, no further order was required to be given by the learned Tribunal. It is submitted that therefore, the impugned order dated 23.12.2017 is not vitiated on the ground that before passing the order dated 23.12.2017, the petitioner and/or his lawyer has not been given any opportunity of being heard. 9.1. It is further submitted by Shri Sanjanwala, learned advocate for the respondent that even otherwise on perusal of the order dated 23.12.2017 makes it clear that that directions of the learned Tribunal while passing order dated 04.12.2017 was that monies required to be deposited by KPT was in discharge of its admitted liability under Article 17.1 of the Concession Agreement and that the monies so deposited with SBI could be utilized commercially by SBI and would not be returned by it to the parties. It is submitted that therefore, when there was ambiguity in the order dated 04.12.2017 and/or some confusion on the part of the SBI that the amount received by the SBI would be in full and final settlement of the claim so far as SBI is concerned, as on such deposit the charge was to be removed and the possession of project assets was to be transferred to KPT and thereafter SBI sought clarification, the copy of which was also given to the KPT (its lawyer) and thereafter when the learned Tribunal has clarified its earlier order dated 04.12.2017, the order dated 23.12.2017 cannot be said to be per se illegal and/or contrary to the earlier order dated 04.12.2017. It is submitted that as such no separate hearing was necessary before passing the order dated 23.12.2017 since Arbitral Tribunal had already granted hearing and was "merely clarifying" its earlier order. It is submitted that learned Commercial Court has dealt with aforesaid aspect while passing the impugned order. Making above submissions, it is submitted by learned Counsel for the respondent that interest of all parties would be protected if the present petitions are dismissed and the order of the learned Tribunal are upheld and complied with by the KPT in letter and spirit since SBI would receive its outstanding dues, thereby releasing its charge over the Project Assets. It is submitted that this would enable JRE to handover peaceful possession of the Project Assets to KP, free of encumbrance, as required under the Concession Agreement and KPT would receive assets worth Rs.252 Crore on payment of Rs. 92 Crore approximately. It is submitted that the project assets which have been lying idle since September 2017 would be put to proper use and at the same time, the lender SBI whose debt is required to be repaid by KPT in terms of its obligation under the Concession Agreement would also be paid. Making above submission, it is requested to dismiss the present petitions. 10. Heard the learned counsel for the respective parties at length. Making above submission, it is requested to dismiss the present petitions. 10. Heard the learned counsel for the respective parties at length. We have perused and considered in detailed the orders passed by the learned Arbitral Tribunal dated 04.12.2017 and subsequent clarificatory order dated 23.12.2017, passed under Section 17 of the Arbitration and Conciliation Act as well as impugned common judgment and order passed by the learned Commercial Court, by which, the learned Judge, Commercial Court, Rajkot has dismissed Commercial Civil Miscellaneous Application upholding the orders dated 04.12.2017 and 23.12.2017. 11. Now, so far as challenge to the order passed by the learned Arbitral Tribunal dated 04.12.2017 is concerned, at the outset, it is required to be noted that said order came to be passed by the learned Arbitral Tribunal in exercise of powers conferred under Section 17 of the Arbitration and Conciliation Act and by which, learned Tribunal in an application under Section 17 of the Arbitration and Conciliation Act submitted by the respondent herein original opponent in the arbitration proceeding, directed the appellant herein original claimant as interim measures to deposit an amount of Rs.92,82,32,724/- by way of debt due to the lender in escrow account with the State Bank of India. The learned Arbitral Tribunal also passed an order and observed that amount so deposited in the escrow account, shall earn interest. The principal amount and the interest shall remain available for appropriation and disbursal in accordance with the award finally made by the Tribunal. The learned Tribunal also further observed that the amount was deposited with the SBI having reached its coffers available to be utilized by it, there should be no difficulty in SBI giving a discharge and as such the Transfer from shall be free from encumbrance. The learned Tribunal observed in para 15 to 18 as under: "15. We have heard the Ld. Sr. Advocates for the parties. We are satisfied that for the present it is not necessary to express any opinion on the case law cited by the parties as undoubtedly the Claimant KPT is claiming an amount of damages by way of compensation and that is yet to be quantified. There are claims and counter claims. However, what cannot be doubted is the obligation of the Claimant KPT to pay the amount of Debt Due to the Lender State Bank of India under Article 17.1(b) of the Concession Agreement. 16. There are claims and counter claims. However, what cannot be doubted is the obligation of the Claimant KPT to pay the amount of Debt Due to the Lender State Bank of India under Article 17.1(b) of the Concession Agreement. 16. In our opinion, it would meet the ends of justice if the Claimant KPT is directed to deposit an amount of Rs. 92,82,32,724/- by way of Debt Due to the Lender in an Escrow Account with the State Bank of India. We have been told that the Escrow Account is already there and is under the control and management of the State Bank of India. The amount so deposited in Escrow account shall earn interest. The principal amount and the interest shall remain available for appropriation and disbursal in accordance with the Award finally made by the Tribunal. The amount so deposited with the SBI having reached its coffers available to be utilized by it, there should be no difficulty in SBI giving a discharge and as such the Transfer from shall be free from encumbrance. 17. By way of abundant caution we clarify that whatever has been stated in this order is solely for the purpose of disposing of the present application and shall not be taken to mean as an expression of opinion either way on the merits of the pleas raised by either party in the main cause before this Tribunal. 18. Therefore, the application is disposed of in the terms indicated in para 16 above. Compliance shall be made by the Claimant KPT within 15 days from the date of this Order, that is, on or before 19-12-2017. Transfer by JRE to KPT as contemplated by the Concession Agreement shall also be completed on the same day or latest by the following day. All this process shall be subject to the Final Award to be passed by this Tribunal." 11.1. While passing the order dated 04.12.2017, it appears that the learned Arbitral Tribunal considered the clause 17.1(b) and 17.4 of the Concession Agreement. The relevant clauses read as under: "17.1(b): Termination due to Concessionaire Event of Default If the termination is after the Date of Commercial Operation, due to a Concessionaire Event of Default, the compensation payable by the Concessioning Authority to the Concessionaire shall be the lowest of: (a) the Book Value; (b) 90% (ninety percent) of Debt Due; (c) the Actual Project Cost; 17.4. Payment of Compensation to Lenders: The Concessionaire hereby irrevocably authorize the Concessioning Authority to pay the Lenders or at their instruction to any designated bank account in India the compensation payable to the Concessionaire. The Concessionaire confirms that upon such payment being made, the Concessioning Authority shall stand duly discharged of its obligations regarding payment of compensation under this agreement and the charge created by the Concessionaire in favour of the Lenders on any of its assets taken over by the Concessioning Authority shall stand satisfied and all such assets shall on and from the Transfer Date be free from such charge. The Concessionaire further confirms that payment of compensation by Concessioning Authority in accordance with this Article 17.4 shall be a valid discharge to the Concessioning Authority in respect of the Concessioning Authority's obligation regarding payment of compensation to the Concessionaire under this Agreement." 11.2 However, as observed in para 15 of the order dated 04.12.2017 as the claimant KPT is also claiming an amount of damages by way of compensation and that is yet to be quantified and there are claim and counter claim, it appears that learned Arbitral Tribunal at this stage subject to ultimate outcome of the proceedings and the award that may be passed and award finally made by the Tribunal directed original claimant KPT to deposit the aforesaid amount by way of debt due to the lender and also passed an order that on such deposit on or before 19.12.2017, transfer by JRE to KPT as contemplated by the Concession Agreement shall also be completed. At this stage, it is required to be noted that as such order dated 04.12.2017 came to be accepted by the petitioner herein original claimant KPT and as such deposited the amount of Rs.92,82,32,724/- with the SBI in escrow account on 19.12.2017. From the correspondence, it appears that the petitioner herein original claimant KPT accepted the order dated 04.12.2017 unconditionally and deposited the entire amount as directed vide order dated 04.12.2017 in due compliance of the order dated 04.12.2017 without any demur. Thus, it appears that till 19.12.2017 and even till 23.12.2017 i.e. clarificatory order dated 23.12.2017 was passed, the petitioner herein original claimant KPT was not aggrieved at all by the order dated 04.12.2017. Therefore, as such thereafter it will not be open for the petitioner herein to challenge the order dated 04.12.2017. 11.3. Thus, it appears that till 19.12.2017 and even till 23.12.2017 i.e. clarificatory order dated 23.12.2017 was passed, the petitioner herein original claimant KPT was not aggrieved at all by the order dated 04.12.2017. Therefore, as such thereafter it will not be open for the petitioner herein to challenge the order dated 04.12.2017. 11.3. Even otherwise, considering the relevant clauses of the concession agreement and the correspondences between the parties, it appears that the learned Arbitral Tribunal was justified in passing order dated 04.12.2017. The order dated 04.12.2017 was subject to award finally that may be made by the Tribunal. Even the learned Tribunal also specifically observed that aforesaid amount which directed to be deposited as principal and the interest shall remain available for appropriation and disbursal in accordance with the Award finally made by the Tribunal. Thus, the order dated 04.12.2017 was by way of interim measure, which does not call for the interference of this Court. Under the circumstances, challenge to the first order dated 04.12.2017 fails, more particularly, when the petitioner itself accepted the order dated 04.12.2017 and deposited the entire amount with the State Bank of India lender and complied with the order dated 04.12.2017. 12. Now, so far as challenge to the subsequent order dated 23.12.2017 as observed by the learned Arbitral Tribunal is clarificatory order and in continuance of the earlier order dated 04.12.2017 is concerned, at the outset, it is required to be noted that as such by the order dated 23.12.2017 there is a substantial modification in the earlier order dated 04.12.2017. By the said order, it is observed and directed that for all practical purpose so far as arbitration proceedings are concerned, present proceedings, as termed by the learned Tribunal, the deposit of Rs.92, 82, 32, 724/ by KPT/DPT with the State of Bank of India shall be treated as discharge of obligation of the Claimant KPT to pay the amount of debt due to the lender under Clause 17.1(b) of the Concession Agreement 18.02.2011. As observed herein above, no such observations were made by the learned Tribunal while passing order dated 04.12.2017. As observed herein above, no such observations were made by the learned Tribunal while passing order dated 04.12.2017. Thus, on considering the order dated 23.12.2017, it appears that though the same has termed as clarificatory order and/or same is stated to be an clarificatory order and/or in continuance of the order dated 04.12.2017, as the order dated 23.12.2017 can be said to be modification of the order dated 04.12.2017 and the Arbitral Tribunal has provided what was not there in the order dated 04.12.2017 and the same has been provided by subsequent order dated 23.12.2017, we are of the firm opinion that same could not have been passed at least without giving any opportunity to all concerned. From the order dated 23.12.2017, it appears and may not be disputed that before passing order dated 23.12.2017, no hearing has been given to any of the parties. It is required to be noted that even the said order dated 23.12.2017 has been passed on the communication by the State Bank of India lender. It is the case on behalf of the petitioner that they accepted the order dated 4.12.2017 as the deposit by the petitioner was subject to final award that may be passed under the arbitration proceedings and the final order and by way of interim measure and as the learned Tribunal specifically observed that there are claims and counterclaim and claim by the claimant by way of damages which is yet to be determined. Therefore, also before passing the order dated 23.12.2017, the concerned parties ought to have been heard by the learned Tribunal. At this stage, it is required to be noted that even by the communication dated 20.12.2017 addressed by the respondent herein addressed to the learned Tribunal even then also requested that it would be most appropriate, expedient and in the interest of justice the Hon'ble Tribunal hold an urgent short hearing (including either by way of a video conference or a teleconference), where the officials of SBI and/or their advocates also participate so that a mutually acceptable resolution of the issue can be reached it. Despite the above, no hearing was given and impugned order dated 23.12.2017 has been passed without hearing the advocates for the respective parties and/or respective parties and therefore, order dated 23.12.2017 can be said to be in breach of principles of natural justice and same deserves to be quashed and set aside. We are of the opinion that, if at all, any further order was required to be passed by the learned Tribunal either in continuance of the order dated 04.12.2017 and/or clarificatory order, in that case also, same could have been passed after hearing the learned advocates for the respective parties and/or the respective parties. Under the circumstances, order dated 23.12.2017 and the impugned order passed by the learned Commercial Court dated 09.03.2018 passed in Commercial Civil Miscellaneous Application Nos. 25 of 2017 and 26 of 2017 upholding the order dated 23.12.2017 deserves to be quashed and set aside. It will be open for the learned Tribunal to pass appropriate order after giving opportunity to the learned advocates for the respective parties and/or after giving an opportunity to the respective parties. Till then, the interim relief granted earlier by the Hon'ble Supreme Court which have been continued till date is directed to be continued. 13. In view of the above and for the reasons stated above, Special Civil Application No.4753 of 2018 in so far as challenge to the order dated 09.03.2018 passed by the learned Commercial Court, Rajkot passed in Commercial Civil Miscellaneous Application Nos. 25 of 2017 as well as order dated 04.12.2017 passed by the learned Arbitral Tribunal passed under Section 17 of the Arbitration and Conciliation Act is concerned, fails and same deserves to be dismissed and is accordingly dismissed. 13.1. In view of the above and for the reasons stated above, Special Civil Application No. 4759 of 2018 is hereby allowed. The impugned common order dated 23.12.2017 passed by the learned Arbitral Tribunal as well as order passed by the 09.03.2018 passed by the learned Commercial Court, Rajkot passed in Commercial Civil Miscellaneous Application No. 26 of 2017 are hereby quashed and set aside. However, with a liberty in favour of learned Arbitral Tribunal to pass appropriate order in accordance with law and after hearing the learned advocates for the respective parties and/or after giving opportunity to the concerned parties. However, with a liberty in favour of learned Arbitral Tribunal to pass appropriate order in accordance with law and after hearing the learned advocates for the respective parties and/or after giving opportunity to the concerned parties. Rule is made absolute to the aforesaid extent so far as Special Civil Application No. 4759 of 2018 is concerned. FURTHER ORDER At this stage, Shri Sanjanwala, learned Senior Advocate appearing on behalf of the respondent, has requested to stay the present order so far as the order passed in Special Civil Application No.4759/2018 is concerned. However, considering the fact that the order of the learned Tribunal dated 23.12.2017, which is quashed and set aside is found to be in breach of principles of natural justice, the prayer is rejected.