JUDGMENT : Chander Bhusan Barowalia, J. By way of this appeal filed under Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the ‘Act’), the appellant has prayed for the following reliefs:- “It is, therefore, respectfully prayed that this appeal be allowed and the order dated 10.04.2019 (Annexure A-4) passed by the Arbitral Tribunal in the arbitration proceedings may be set aside. The appellant may also be allowed its costs in these proceedings and such other and further relief as may be considered just and proper in the facts of the case and justice be done.” 2. Brief facts necessary for adjudication of this appeal are as under:- Parties had entered into an agreement for the works relating to “Balance work of widening and strengthening of Kharapathar-Hatkoti-Rohru road project from Km.48+000 to 80+684 and contract bearing No.PW.SRP/RIDC/HP/5/NCB, was duly executed between the parties, which also contains an arbitration agreement. 3. Some salient dates of the package are as under:- (a) Date of award of work : 09.10.2013 (b) Date of agreement : 19.11.2013 (c) Date of commencement of work : 23.12.2013 (d) Stipulated date of completion : 22.6.2016 Vide communication dated 25.09.2018 (page 275 of the paper book), the agreement was terminated by the appellant/employer on the alleged ground of fundamental breach of terms of the agreement by the claimant. 4. Vide communication dated 26.9.2018 (page 277 of the paper book), appellant/employer called upon the claimant to deposit amount due as per notified Employer’s claim and outstanding material recovery/secured advance positively within three days. It was mentioned in this communication that Employer reserved its right to notify any remaining/left out recoveries to be effected from the Contractor in terms of contractual provisions. It was further mentioned that the Executive Engineer, National Highway Division, H.P.PWD, Theog, will take over the site and confiscate all materials on the site, Plant, Equipment, Temporary works, works with the help of District Administration. 5. This was followed by communication dated 16.11.2018, which reads as under:- “To Sh. R.M. Aggarwal, Director (Technical), C&C Construction Limited, Plot No. 70, Institutional, Sector 32, Gurgaon-122001 (Haryana) Subject : Widening and Strengthening of Theog Kotkhai-Kharapatthar road from Km 0+000 to Km 48+000 (Contract No. PW.SRP/RIDC/ ProcurementICB-5/Pkg-1/2013) & Kharapatthar-Hatkoti-Rohru road from Km 48+000 to 80+684 (Contract No. PW.SRP/RIDC/Procurement/-NCB-5/2013) – Regarding supplying of requisite information of the confiscated machinery/plant/ equipment. Reference :- 1. Employer’s letter no. Reference :- 1. Employer’s letter no. HPRIDC/ SRP/EE-(T&D)/ICB-5/Gen.(Vol-XII)/ 2018-1759-62 dated 27.09.2018. 2. Employer’s letter no. HPRIDC/SRP/EE-(T&D)/ICB-5/Gen.(Vol-VII)/2018-1743-46 dated 26.09.2018. 3. Employer’s email dated 17.10.2018. Sir, In continuation to above referred letter and email, the assessment of the confiscated plant/machinery/equipment done by the committee formed by Superintending Engineer, Mechanical HPPWD, Dhalli is enclosed herewith. It is noted in the assessment that some requisite information such as Registration No. Make & Model, Engine No., Chassis No., Year of Manufacture and up to date taxes deposited with concerned authorities are not available with the Employer. You are requested to provide the above said documents/information on or before November, 25, 2018 through some responsible key person failing which further action shall be taken as per the relevant contractual provisions. The same is required to be furnished by you at the earliest so that next action for the auction of the confiscated plant/machinery/equipment can be taken at the earliest. Further depreciation in the valuation due to delay in supplying the requisite information and extended cost of watch and ward, etc, may be recovered from you. Therefore, you are once again requested to furnish the above cited information to this office at the earliest. Encl: As above Chief Engineer-cum-Project Director, State Roads Project, HPRIDC, Nirman Bhawan, Shimla-2.” 6. Feeling aggrieved, claimant filed Arbitration Petition No. 111 of 2018 before this Court under Section 9 of the Arbitration and Conciliation Act, 1966, in which, on 05.12.2018, this Court passed the following order:- “Issue notice. Ms. Srishti Verma, Advocate, appears and waives notice on behalf of the respondent. She prays for and is granted two weeks’ time to file reply. List on 26.12.2018. In the meanwhile, it is ordered that machinery seized by the respondent shall not be put to auction”. 7. Said petition was finally disposed of by this Court on 8.01.2019 in the following terms:- “Mr. Ajay Kumar, learned Senior Counsel, representing the petitioner, states that as per instructions imparted to him, the present petition, has rendered, infructuous because during the pendency of the present petition, Arbitration Tribunal stands constituted for the adjudication of dispute inter se parties. 7. Said petition was finally disposed of by this Court on 8.01.2019 in the following terms:- “Mr. Ajay Kumar, learned Senior Counsel, representing the petitioner, states that as per instructions imparted to him, the present petition, has rendered, infructuous because during the pendency of the present petition, Arbitration Tribunal stands constituted for the adjudication of dispute inter se parties. He further contended that though now disputes inter se parties are required to be adjudicated by the learned Tribunal, so constituted in terms of agreement inter se parties, but till the time, application for interim protection/measures filed on behalf petitioner, is not decided by learned Arbitration Tribunal, interim order passed by this Court may be ordered to be continued. 2. Mr. J.S. Bhogal, learned Senior Counsel representing the respondent, fairly acknowledged the factum with regard to constitution of learned Arbitration Tribunal and contended that petitioner may be directed to file an application under Section 17 of the Arbitration and Conciliation Act, 1996, within time bound manner, so that application for interim measures is decided within stipulated period. 3. Consequently, in view of the above, present petition is disposed of, as having rendered infructuous. However, it is further ordered that petitioner shall file application under Section 17 of the Arbitration and Conciliation Act, 1996, if any, within a period of two weeks from today and thereafter, same would be decided by the learned Arbitration Tribunal expeditiously, preferably, within a period of four weeks. Till the disposal of application as referred to above, interim protection granted by this Court vide order dated 5.12.2018, shall remain in force. 4. The petition stands disposed of accordingly, so also, the pending application, if any.” 8. Till the disposal of application as referred to above, interim protection granted by this Court vide order dated 5.12.2018, shall remain in force. 4. The petition stands disposed of accordingly, so also, the pending application, if any.” 8. Thereafter, claimant filed a petition under Section 17 of the Act before the learned Arbitral Tribunal praying for the following reliefs:- “It is therefore most respectfully prayed that this Hon’ble Court may be pleased to order as under/grant following relief to the claimant: (a) restraining the Respondent from disposing of or selling or auctioning or parting with possession of the illegally seized equipment, machines, plants, material and other assets of the Claimant as informed by the Respondent vide HPRIDC Letter No. 2250-57 dated 16.11.2018 [Annexure-C13 (colly)] and for preservation of the illegally seized equipments, machines, plants, material and other assets of the Claimant pertaining to Road Construction Contract Package I -Theog – Kotkhai – Kharapatthar (km0+000 to Km 48+000 terminated by the Respondent) pending the arbitration proceedings contemplated by the Claimant and Respondent; (b) direct the Respondent to maintain status-quo with respect to the seized equipment, machines, plants, material etc. as informed vide Claimant’s letter dated 16.10.2018; (c) direct the Respondent to restore the possession of all such seized equipment, machines, plants and materials to the Claimant as per Claimant’s letter dated 16.10.2018; (d) Grant any other or further relief which this Hon’ble Tribunal may deem fit in the facts and circumstances of the case.” 9. Vide impugned order, learned Tribunal has disposed of the application filed by the claimant by directing the petitioner/employer to put back the claimant in possession of the machinery equipment and other articles as per the list within a week from the passing of the order. 10. Feeling aggrieved, the petitioner/employer, has filed the present appeal. 11. A perusal of the order impugned demonstrates that learned Tribunal allowed the application filed under Section 17 of the Act primarily on the ground that employer, without adjudication of its claim either through Court of law or through arbitration, could not have had taken recourse to confiscate the machinery and other equipments. According to the learned Tribunal, in order to exercise its so called right of confiscation, even the terms of the contract did not entitle the employer to confiscate the machinery and equipment without the claim having been adjudicated upon qua its entitlement to damages or other dues. 12. According to the learned Tribunal, in order to exercise its so called right of confiscation, even the terms of the contract did not entitle the employer to confiscate the machinery and equipment without the claim having been adjudicated upon qua its entitlement to damages or other dues. 12. Learned Senior Counsel appearing for the petitioner/Employer has argued that the impugned order is not sustainable in law as the findings returned by the learned Tribunal that the employer could not have confiscated the property of the claimant without any adjudication in favour of employer are perverse findings as the same ignore the provisions of Clause 15.2 of the Contract, as in terms of this Clause, after termination of the Contract, the Employer had a right to sell the items of the Contractor if the contractor had failed to make the payment due to the employer. Mr. Bhogal has further argued that a notice in terms of Clause 15.2 of the agreement was served upon the contractor and after the contractor failed to make the payment of the amounts as were due towards the employer, in these circumstances, the employer was within its right to confiscate and sell the properties of the contractor, including the plant, machinery etc and for this, no adjudication in its favour was required. Mr. Bhogal has relied upon the judgment of Hon’ble Supreme Court passed in M/s H.M. Kamaluddin Ansari & Co. versus Shankar Vijay Saw Mills, AIR 1984 SC 29 . 13. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the claimant/respondent has argued that there is no merit in the appeal as learned Tribunal has correctly concluded that in the absence of there being any adjudication in favour of employer, it could not have had unilaterally and arbitrarily confiscated the properties of the claimant. He has further argued that the so called payments which were purportedly due to the employer from the claimant are in the shape of damages and it is settled law that till the time an adjudication is not made in favour of a party which claims damages, it cannot be said that anything is due to said party from other party. On these bases, he has prayed that as the appeal is without merit, the same be dismissed. 14. On these bases, he has prayed that as the appeal is without merit, the same be dismissed. 14. I have heard learned Senior Counsel appearing for the parties and also gone through the impugned order as well as the relevant record of the case in detail. 15. The challenge to the judgment passed by learned Tribunal on behalf of the appellant is primarily on the ground that while passing the impugned order, learned Tribunal has erred in not appreciating that Clause 15.2 of the Contract is enforceable without adjudication of the claim of the appellant in terms of the law laid down by Hon’ble Supreme Court in M/s H.M. Kamaluddin Ansari & Co. (supra). Before proceeding further, it is therefore necessary to consider at this stage itself the law laid down by Hon’ble Supreme Court in case referred to supra. In the said judgment, the primary issue before the Hon’ble Supreme Court was interpretation of Clause 18 of the general conditions of the Contract, subject matter of the said case, which read as under:- “18. Recovery of Sums Due: Whenever any claim for the payment of a sum of money arises out of or under the contract against the contract, the purchaser shall be entitled to recover such sum by appropriating in whole or in part, the security, if any, deposited by the contractor, and for the purpose aforesaid, shall be entitled to sell and/or realise securities forming the whole or part of any such security deposit. In the event of the security being insufficient, the balance and if not security has been taken from the contractor, the entire sum recoverable shall be recovered by appropriating any sum then due or which at any time thereafter may become due to the contractor under the contract or any other contract with the purchaser or the Government or any person contracting through the Secretary. If such sum even be not sufficient to cover the full amount recoverable, the contractor shall be on demand pay to the purchaser the balance remaining due...” 16. In the said case, appellant before the Hon’ble Supreme Court failed to perform its part of the contract i.e. to supply the books. The contract was cancelled and by a notice, DGS & D called upon the appellant therein to pay the amount, failing which, alternative arrangements would be made to recover the amount. In the said case, appellant before the Hon’ble Supreme Court failed to perform its part of the contract i.e. to supply the books. The contract was cancelled and by a notice, DGS & D called upon the appellant therein to pay the amount, failing which, alternative arrangements would be made to recover the amount. There were also some other contracts between the parties, in which appellant had supplied goods and payments were due to it under pending bills from the respondent. As respondent-Union of India threatened to withhold an amount of Rs.92,364/- from the payments due under the pending bills of other contracts, the appellant-firm sought an injunction under Section 41 read with Second Schedule of the Arbitration Act, and Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, restraining the respondents from appropriating, withholding or recovering the amount claimed from its other bills in any manner whatsoever. 17. The moot issue was as to whether the appellant was entitled for an order of injunction as prayed for under Section 41 of the Arbitration Act or not. As there were different opinions in the judgments of the same High Court on the same question, learned Single Judge, who was of the view that such an injunction could be issued, made a reference to the Division Bench. On reference, Division Bench however held that the Court could grant an injunction restraining the respondent from appropriating or recovering the amount of damages claimed from the appellant’s other pending bills, but no order restraining the Union of India from withholding payments of the other pending bill could be issued under Section 41 of the Arbitration Act as it would amount to a direction to pay the amount due under other bills and such a prayer would virtually amount to seeking a relief for decreeing the claim of the appellant in those contracts. In appeal, Hon’ble Supreme Court held that injunction order restraining the respondent from withholding the amount due under other pending bills to the contractor virtually amounts to issuing a direction to pay the amount to the contractor and such an order was beyond the purview of Clause (b) of Section 41 of the Arbitration Act. In appeal, Hon’ble Supreme Court held that injunction order restraining the respondent from withholding the amount due under other pending bills to the contractor virtually amounts to issuing a direction to pay the amount to the contractor and such an order was beyond the purview of Clause (b) of Section 41 of the Arbitration Act. It further held that Clause 18 of the standard contract conferred ample powers upon Union of India to withhold the amount and no injunction could be issued restraining Union of India from withholding the amount. 18. Now, coming to the facts of the present case, here it is not as if the appellant before this Court has been injuncted by learned Tribunal from withholding any amount payable to the respondent against other contracts, which appellant intended to withhold on account of the dispute pending before the learned Arbitral Tribunal. Here issue was that post termination of the contract, appellant confiscated the properties of the respondent/contractor by invoking Clause 15.2 of the Contract with the intent of selling them to make good the amount which as per the appellant was due to it from the respondent as damages. 19. In my considered view, the judgment of the Hon’ble Supreme Court referred to above, in fact, has no bearing upon the dispute in hand. The thrust of the learned Senior Counsel appearing for the appellant that it stands substantiated from the said judgment that the appellant could have had exercised the power vested in it under Clause 15.2 of the Contract independent of adjudication of its claim also has no force. Under Clause 18 of the Contract, subject matter of the dispute before the Hon’ble Supreme Court, Union of India had only withheld payments due to the contractor for other contracts. This as per the Hon’ble Supreme Court was permissible. In this case, according to the appellant, on account of acts of omission and commission of the respondent, it is entitled for certain damages. In order to make good those damages, it invoked the provisions of Clause 15.2 of the contract and confiscated the property of the contractor with the intent to sell the same and thus, make good its loss. In order to make good those damages, it invoked the provisions of Clause 15.2 of the contract and confiscated the property of the contractor with the intent to sell the same and thus, make good its loss. This, in my considered view, is not permissible unless the damages as claimed by the appellant stand adjudicated upon either by a competent Court of Law or in arbitration proceedings because it is settled law that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. (See AIR 1974 SC 1265 , Union of India vs. Raman Iron Foundry). 20. Clause 15.2 of the Contract inter alia provides that after termination of the contract, the Employer may complete the Works and/or arrange for any other entities to do so. The Employer and these entities may then use any Goods, Contractor’s Documents and other design documents made by or on behalf of the Contractor. It further provides that Employer can then give notice that the Contractor’s Equipment and Temporary Works will be released to the Contractor at or near the Site and the Contractor shall promptly arrange their removal, however, if by this time, Contractor has failed to make the payment due to the Employer, these items may be sold by the Employer in order to recover this payment. Thus, the words used in the Clause are “payment due to the Employer”. In my considered view, damages till adjudicated upon in favour of the Employer by a competent Court of law or adjudicatory authority cannot be termed to be “payment due to the Employer”. This is for the reason that “payment due to the Employer” has to be a definite arrived at figure, upon legal adjudication, and the same cannot be an amount arrived at unilaterally by the Employer, purportedly due to it, from the contractor. This in fact is not the spirit of Clause 15.2 of the Contract also. At this stage, it is also relevant to refer to the notice which purportedly was given by the Employer to the Contractor in terms of Clause 15.2 of the Contract, which is dated 18.09.2018 (page 252 of the Contract) as the amount claimed therein is inter alia delay damages, cost of restoration of damages, etc. 21. At this stage, it is also relevant to refer to the notice which purportedly was given by the Employer to the Contractor in terms of Clause 15.2 of the Contract, which is dated 18.09.2018 (page 252 of the Contract) as the amount claimed therein is inter alia delay damages, cost of restoration of damages, etc. 21. In view of discussion held herein-above, there is neither any infirmity nor any illegality in the impugned order. Learned Tribunal has correctly held that the appellant herein without adjudication of its claim either through a competent Court of law or through arbitration could not have taken recourse to confiscate the machinery or other equipments of the Contractor and even the terms of the Contract do not entitle the Employer to confiscate the machinery and equipments without the claim having been adjudicated upon or finding of its entitlement to damages or other dues returned by competent Court of law. Clause 15.2 of the Contract, otherwise also, has to be read down meaning thereby that the right of the Employer to sell the items, referred to in the said Clause would accrue only after an adjudication of the “payment due to the Employer” has been made either by a competent Court of law or through the process of arbitration. 22. Thus, as this Court does not find any merit in the present appeal, nor the order passed by the learned Tribunal suffers from any illegality, irregularity or perversity, present appeal is dismissed. 23. Pending miscellaneous application, if any, also stand disposed of. No order as to costs.