ORDER : 1. The instant appeal has been filed by the appellant-claimant by making the following prayers:- “1. Allow the present appeal challenging the impugned order dated 19th May, 2023, being Procedural Order No.12 dated 19th May, 2023 insofar as it dismisses the Section 17 Application filed on behalf of CEC before the Arbitral Tribunal in the ongoing arbitration proceedings and set aside the same; 2. Direct the release and return of the Bank Guarantees to the Appellant herein expiring now on 15th September, 2023; 3. Pass any other orders in the interest of justice as the nature and circumstances of the case may require.” 2. The appellant-Company has pleaded that it had entered into a contract agreement dated 05.10.2013 for a design and build construction contract. 3. The appellant is a company incorporated in Taiwan having its Corporate Office at Gurgaon, India and it is a leading company in civil engineering and infrastructure industry, globally. 4. The respondent-M/s.Jaipur Metro Rail Corporation Limited (hereinafter ‘JMRC’) is a State-owned company and entrusted with the construction, maintenance and operation of the Jaipur Metro. 5. The appellant has preferred the instant appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter ‘the Act of 1996’) against the portion of the Procedural Order No.12, dated 19.05.2023, dismissing the application filed by appellant under Section 17 of the Act of 1996 seeking modification of an earlier interim order passed by the Arbitral Tribunal in relation to the bank guarantees submitted by the appellant. 6. The appellant has pleaded that the respondent- JMRC had invited bids from eligible bidder for execution of work for carrying out design and construction of the underground Metro in Jaipur. 7. The appellant has pleaded that a Letter of Acceptance (‘LOA’) was issued in favour of appellant- Company dated 09.09.2013, for a value of Rs.507,36,81,960/- with a scheduled time for completion of 36 months from the commencement date. 8. The appellant has pleaded that the parties had entered into a contract agreement dated 05.10.2013 and thereafter, certain amendments were made by way of Particular Conditions of Contract (‘PCC’) along-with two addendums dated 09.07.2013 and 11.07.2013. 9. The appellant has pleaded that the appellant- Company and respondent-JMRC, later on, entered into a supplementary agreement dated 26.05.2020. 8. The appellant has pleaded that the parties had entered into a contract agreement dated 05.10.2013 and thereafter, certain amendments were made by way of Particular Conditions of Contract (‘PCC’) along-with two addendums dated 09.07.2013 and 11.07.2013. 9. The appellant has pleaded that the appellant- Company and respondent-JMRC, later on, entered into a supplementary agreement dated 26.05.2020. The appellant under the GCC and PCC had submitted two sets of bank guarantees i.e. Performance Security Bank Guarantee and Retention Bank Guarantee in lieu of retention money. 10. The appellant has pleaded that on account of significant delay by the respondent-JMRC in performing its obligations under the contract agreement, huge financial losses, were suffered and there was also total blockage of working capital for the appellant. 11. The appellant, vide its letter dated 24.04.2018, gave a notice of intention under Clause 20.4 of the GCC to refer the dispute relating to payment of compensation for additional costs and losses suffered due to delays and disruptions. The Dispute Adjudication Board (hereinafter ‘DAB’) gave its decision on 30.08.2019 and the appellant was held entitled to extend the claim for period upto December, 2019 for an amount of Rs.40.39 Crore and Rs.47.57 Crore against overheads total amounting to Rs.87.97 Crore, plus release of withheld amounting to Rs.2 Crore. 12. The appellant-Company has pleaded that the respondent-JMRC had issued a notice of dissatisfaction under Clause 20.4 of GCC questioning the decision given by DAB and suggested that the parties may settle their dispute through arbitration. 13. The appellant, vide letter dated 19.11.2019, invoked the arbitration clause between the parties and thereafter, the Arbitral Tribunal was duly constituted in accordance with law to adjudicate the claims of appellant- Company against respondent-JMRC. 14. The appellant-Company has pleaded that it filed its statement of claim and respondent-JMRC filed its statement of defence and after completion of pleadings and determination of issues, filing of evidence, as such, the arbitration proceedings are presently at the stage of recording evidence. 15. The appellant has pleaded that during course of the arbitration proceedings and aggrieved by the coercive action by the respondent-JMRC, the appellant filed an application under Section 17 of the Act of 1996 in the month of April, 2021 praying inter-alia for restraining the respondent-JMRC from encashing bank guarantees as well as seeking release of the same. 15. The appellant has pleaded that during course of the arbitration proceedings and aggrieved by the coercive action by the respondent-JMRC, the appellant filed an application under Section 17 of the Act of 1996 in the month of April, 2021 praying inter-alia for restraining the respondent-JMRC from encashing bank guarantees as well as seeking release of the same. This Court, deems it appropriate to quote the prayer made in the said application, as under:- “In view of the aforesaid facts and circumstances of the case, it is most humbly prayed that this Hon'ble Tribunal may kindly be pleased to:- (i) pass a restraining order against the Respondent from encashment of the Performance Bank Guarantees bearing no. 902IGBG132760004, 902IGBG132760001, and 902IGBG132760002; (ii) pass a restraining order against the Respondent from encashment of the Retention Bank Guarantees bearing no.820-02-0067186, 820-02-0067202 and 820-02-0067220 by the Respondent; (iii) Direct the Respondent to release the Performance Bank Guarantees bearing no. 902IGBG132760004, 902IGBG132760001, and 902IGBG132760002; (iv) Direct the Respondent to release the Retention Bank Guarantees bearing no.820-02- 0067186, 820-02-0067202 and 820-02- 0067220; (v) Pass any other and/or further order(s) which this Hon'ble Tribunal deems fit and proper in the interest of justice.” 16. The appellant has pleaded that the respondent had also filed application under Sections 16 and 17 of the Act of 1996 challenging the jurisdiction of the Arbitral Tribunal to adjudicate upon the bank guarantees. The Arbitral Tribunal passed an order dated 28.10.2021, wherein the respondent- JMRC was restrained from encashing the bank guarantees. The Tribunal further by said interim order directed the appellant to extend the validity of bank guarantees for a period of, at least, six months from the date of validity thereof. The operative portion of the order dated 28.10.2021 passed by the Arbitral Tribunal is quoted as hereunder:- “7. Claimant's Application Under Section 17 Of The Arbitration & Conciliation Act, 1996 And Respondent's Applications Under Section 16 And 17 Of The Arbitration & Conciliation Act, 1996:- The Ld. Senior Counsel for the Parties have been heard at considerable length. Having regard to the interim relief prayed for in the Claimant's Application and the response of the Respondent thereto, including its stand in the two of the own Applications, viz. Senior Counsel for the Parties have been heard at considerable length. Having regard to the interim relief prayed for in the Claimant's Application and the response of the Respondent thereto, including its stand in the two of the own Applications, viz. (i) under Section 17 of the Arbitration & Conciliation Act., 1996 (for short "the Act") and (ii) Section 16 of the Act, which Applications, in essence, supplement the Reply already filed by the Respondent to the Claimant's Application under Section 17 of the Act, the Tribunal deems it appropriate to dispose of all the pending Applications, with a direction that the Respondent shall not invoke and encash the Bank Guarantees, detailed in paragraphs (i) & (ii) of the prayer clause in the Claimant's Application under Section 17 of the Act. It is further directed that the Claimant shall keep the subject Bank Guarantees alive at least for a further period of six months beyond the present validity period of the Bank Guarantees. It will, however, be open to the Parties to seek variation/modification of these directions, as and when so advised. The three Applications under Section 16 and 17 of the Act stand disposed of accordingly.” 17. The appellant has pleaded that in compliance of order passed on 28.10.2021, the appellant has been duly extending the validity period of the bank guarantee, which are finally set to expire on 15.09.2023. The appellant has further submitted that after the interim order and subsequent extensions of bank guarantees, several pertinent events had taken place and as such, interim application under Section 17 of the Act of 1996 dated 01.04.2023 was filed before the Arbitral Tribunal seeking release and return of bankguarantees. 18. The appellant has pleaded that the subsequent events which had taken place, are as under:- 18.1 There was a wrongful termination of the contract by the respondent by way of a termination letter dated 10.03.2023, during pendency of the arbitral proceedings. 18.2 The Defects Notification Period (hereinafter ‘DNP’) had commenced on 15.03.2020 for a period of 52 weeks and thus ended on 13.03.2021, the same was wrongly extended on several occasions and even after alleged defects being remedied by the appellant-Company. The DNP under Clause 2.5 of the GCC, the employer’s claims could not be extended beyond a period of two years which already stood expired on 13.03.2021 and as such, the appellant completed its contractual obligation. The DNP under Clause 2.5 of the GCC, the employer’s claims could not be extended beyond a period of two years which already stood expired on 13.03.2021 and as such, the appellant completed its contractual obligation. 18.3 The respondent-JMRC raised a baseless employer’s claim allegedly under Clause 2.5 of the GCC by way of letters dated 16.03.2023 and 20.03.2023. 19. The appellant has pleaded that on aforesaid developments and illegal actions on the part of the respondent with a view to invoke and encash bank guarantee, the respondent also moved modification application dated 24.03.2023 for modification/variation of the interim order and the respondent-JMRC by way of said application, without raising any monetary claim against the appellant or justifiable cause for seeking relief, sought for modification of interim order. This Court deems it proper to quote the prayer made by the appellant in his application dated 01.04.2023, as under:- “In view of the aforesaid facts, circumstances, CEC/ the Claimant prays that this Hon'ble Tribunal may be pleased to: a. Direct the release and return of the Performance Bank Guarantees bearing reference numbers 902IGBG132760004, 902IGBG132760001 and 902IGBG132760002 expiring on 11 April 2023; b. Direct the release and return of the Retention Bank Guarantees bearing reference numbers 820-02-0067186, 820-02-0067220 and 820-02-0067202 expiring on 11 April 2023; c. Pass urgent ad-interim reliefs modifying the directions made to CEC by way of email dated 25 March 2023 for renewal of the Bank Guarantees for a period of at least six months beyond the present period of validity of the Bank Guarantees; d. Pass any other urgent ad-interim reliefs in relation to prayers (a) and (b); and e. Pass any further or other order(s)/ relief(s) that this Hon'ble Court may deem fit and proper in favour of CEC, in the facts and circumstances of the case.” 20. The appellant has pleaded that the impugned order dated 19.05.2023, has been passed by the Tribunal without deciding the contentions raised before it, this Court deems it proper to quote the relevant paras of the order dated 19.05.2023:- “1.5 Having heard the Ld. The appellant has pleaded that the impugned order dated 19.05.2023, has been passed by the Tribunal without deciding the contentions raised before it, this Court deems it proper to quote the relevant paras of the order dated 19.05.2023:- “1.5 Having heard the Ld. Counsel for the Parties at considerable length, the Tribunal is of the considered opinion that the circumstances pressed into service by the Parties in support of their respective Applications have no bearing on the interim directions, which had been issued by the Tribunal vide Order dated 28.10.2021, in exercise of its jurisdiction under Section 17 of the Act. The interim Order was passed balancing the equities between the Parties, prevailing at that point of time. The Tribunal is of the view that neither the event of termination of the Contract by the Respondent nor the expiry of the Defects Notification Period is a relevant factor, warranting modification/variation of the interim protection granted to the Claimant, when, admittedly, both the said issues are not the subject matter of the present proceedings. 1.6 Resultantly, both the Applications are dismissed with the direction to the Claimant to keep the subject Bank Guarantees alive for a further period of six months from today. If, for any reason, the banking policies, do not permit the extension of the same Bank Guarantees beyond a period of ten years, as is sought to be pleaded in paragraph 6.11 of the Claimant's Application, the Claimant shall furnish fresh Bank Guarantees, in lieu of the old Bank Guarantees, for the said period. 1.7 It goes without saying that any observation in this order is only for the disposal of the Application under consideration and the Tribunal has not expressed any opinion on the submissions made on the merits of the termination of the Contract and the effect of the expiry of the Defects Liability Period and the rights flowing therefrom in favour of the Parties under the terms of the Contract. It will be open to the Parties to pursue the remedies available to them in law for redressal of their grievance relating to the said events.” 21. Learned counsel appearing for the appellant Mr.Samudra Sarangi has made the following submissions:- 21.1 The impugned order passed by the Tribunal is bad in the eye of law, as the application filed by the appellant has been dismissed without any reason or rationale. Learned counsel appearing for the appellant Mr.Samudra Sarangi has made the following submissions:- 21.1 The impugned order passed by the Tribunal is bad in the eye of law, as the application filed by the appellant has been dismissed without any reason or rationale. The Tribunal did not consider the issue relating to extend the obligations in relation to bank guarantees beyond scope of obligation provided under the contract. 21.2 The Tribunal failed to consider that even expiry of illegally extended DNP, was a material event to modify the interim order, particularly when the issuance of taking over certificate and expiry of DNP was to result into entitlement of the appellant for return of the bank guarantees under the contract. 21.3 There was no claim in relation to the bank guarantees by the respondent and as such, the bank guarantees cannot be kept alive indefinitely. The respondent since did not ask for monetary claim and as such, the bank guarantees could not have been kept as safeguard against any alleged interest of the respondent-JMRC. 21.4 The Tribunal failed to consider that on the one hand it exercised its jurisdiction in relation to the bank guarantees and also permitted the parties to file application for variation/modification of earlier order dated 28.10.2021 and on such facts being brought on record making out a case of variation, the application filed by the appellant has been dismissed. 21.5 The power conferred under Section 17 of the Act of 1996 is akin to power provided under Order 39 Rule 4 CPC and when grounds were established for modification then the Tribunal could not have dismissed application. 21.6 Learned counsel for the appellant submitted that the bank guarantees since are not the subject matter of dispute before the Arbitrator and such bank guarantees cannot be allowed to be renewed by the Tribunal as an interim measure. 21.7 Learned counsel for the appellant submitted that the Performance Bank Guarantee in no case can be retained after the purpose of the same is served. 21.8 Learned counsel for the appellant submitted that this Court under Section 37 of the Act of 1996 has a wide power to grant relief and as such, direction has been sought before this Court to return the bank guarantees. 22. Learned counsel for the appellant in support of his contentions places reliance on the following judgments:- 1. Union of India Vs. 22. Learned counsel for the appellant in support of his contentions places reliance on the following judgments:- 1. Union of India Vs. RCCIVL-LITL reported in [2022 SCC OnLine Del 4340]. 2. Elena Power and Infrastructure Limited Vs. Shapoorji Pallonji and Company Pvt Limited & Anr. passed by the Delhi High Court in Arb. A. (COMM.) No.49/2021 vide judgment dated 21.09.2021. 3. Gail India Limited Vs. Triveni Engineering and Industries Limited passed by the Delhi High Court in Arb. A. (COMM.) No.3/2019 vide judgment dated 31.01.2019. 4. Bharat Sanchar Nigam Limited Vs. Teracom Limited passed by the Delhi High Court in O.M.P. (COMM) No.431/2019 vide judgment dated 28.03.2022. 5. Larsen & Toubro Limited Vs. Experion Developers Pvt. Ltd. reported in [2019 SCC OnLine Del 9097]. 6. Leslie David Isaac Vs. Bahadur Bapuji Sanjana passed by the Bombay High Court in Arbitration Appeal No.12/2012 dated 09.04.2012. 7. Edelweiss Asset Reconstruction Company Limited Vs. GTL Infrastructure Limited and Another reported in [2020 SCC OnLine Del 2081]. 23. Per contra, learned counsel for the respondent- JMRC Mr.Sandeep Pathak appearing with Ms.Vartika Mehra has made the following submissions:- 23.1 The application filed by the appellant-claimant has rightly been rejected by the Arbitral Tribunal as a second application for interim relief seeking similar/identical relief is not maintainable. 23.2 The appellant-Company in its first application under Section 17 of the Act of 1996, while seeking release of the bank guarantees had urged that the DNP has ended and thereafter, no purpose of bank guarantees was to be served. 23.3 The appellant in the second application also primarily raised the same contention that the DNP has ended and as such, refusal of relief of releasing the bank guarantees by earlier order, has rightly been denied to the appellant. 23.4 The appellant was denied the relief of releasing the bank guarantees in earlier order dated 28.10.2021 passed by the Arbitral Tribunal and the same was accepted by the appellant and not challenged before the appropriate Forum and as such, the appellant is estopped to claim the same relief which the appellant has already accepted earlier denying the release of bank guarantees. 23.5 The relief under Section 17 can only be granted in the subject matter of dispute but the bank guarantees are not the subject matter of dispute in the arbitration proceedings and as such, under Section 17 of the Act of 1996, no direction can be granted as sought by the appellant. 23.6 The relief sought by the appellant if will be permitted, the same shall render the contractual terms and conditions agreed between the parties as redundant and interim relief, which interferes with the exercise of contractual rights, may not be granted by the Tribunal as per Section 17 of the Act of 1996. 24. Learned counsel for the respondent has placed reliance on the following judgments, are as under:- 1. Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd. & Anr. reported in [ (1997)6 SCC 450 ]. 2. Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Co. reported in [ (2007)8 SCC 110 ]. 3. Standard Chartered Bank Vs. Heavy Engineering Corporation Limited reported in [ (2020)13 SCC 574 ]. 25. I have heard learned counsel for the parties and perused the material available on record. 26. This Court, after going through the pleadings of the parties, finds that initially an application was filed by the appellant-claimant under Section 17 of the Act of 1996 and applications were also filed by the respondent under Sections 16 and 17 of the Act of 1996 and the Tribunal had passed the order by disposing of the said applications restraining the respondent to invoke encash bank guarantees and further the appellant was directed to keep the bank guarantees alive. 27. This Court finds that the Arbitral Tribunal while passing the order dated 28.10.2021, had also observed that it would be open to the appellant-claimant and the respondent to seek variation/modification of the directions, as and when, so advised to them. 28. This Court finds that since liberty was granted to the parties to seek variation/modification of the directions issued by the Arbitral Tribunal, the appellant had a right to file an application for seeking variation/modification of the directions issued earlier. 29. 28. This Court finds that since liberty was granted to the parties to seek variation/modification of the directions issued by the Arbitral Tribunal, the appellant had a right to file an application for seeking variation/modification of the directions issued earlier. 29. This Court also finds substance in the submission of learned counsel for the appellant that the interim order which has been passed under Section 17 of the Act of 1996 can be varied/modified on appropriate application filed before the Arbitral Tribunal, raising certain grounds, then the same need proper consideration by the Arbitral Tribunal. 30. This Court finds that the time and again the Apex Court has also reiterated the principle of law that power of passing interim order under Sections 17 and 19 of the Act of 1996 can be exercised by the Competent Authority and the Arbitral Tribunal, and if the grounds exist for variation & modification of order and the parameters which have been enumerated under Order 39 Rule 4 CPC, may be kept in mind while deciding such application. 31. This Court finds that in the present case, subsequent/developments which had taken place like termination of contract, end of DNP and other relevant factors, were the grounds, which were taken up in the application filed by the appellant-claimant. 32. This Court finds that the order dated 19.05.2023, has only observed that the interim order was earlier passed while balancing the equities between the parties prevailing at that point of time. 33. The findings given by the Tribunal that neither the event of termination of contract by the respondent nor expiry of DNP will be a relevant factor warranting modification/variation of the interim protection granted to the claimant, when both the orders are not the subject matter of the Arbitral Tribunal, this Court finds that the said findings of the Arbitral Tribunal are not correct and reasoned findings in according with law. 34. This Court finds that no reasons have been assigned, as why, the subsequent events which have been taken place, can be considered as the relevant factors for looking into the prayer sought by the parties. 35. This Court may not be misunderstood to say that the appellant has a right for releasing of the bank guarantees and the respondent has right to invoke the bank guarantees, as the said right is independent right between the respondent and the appellant. 36. 35. This Court may not be misunderstood to say that the appellant has a right for releasing of the bank guarantees and the respondent has right to invoke the bank guarantees, as the said right is independent right between the respondent and the appellant. 36. This Court, however, finds that while deciding the application for modification filed under Section 17 of the Act of 1996, the Arbitral Tribunal should have assigned the proper reasons and should have given its findings, as why, the application so filed by the claimant, was not required to be entertained. 37. This Court finds substance in the submission of counsel for the appellant that on the one hand a direction is given to continue to keep the bank guarantees alive and on the other hand, the respondent is also restrained to encash the same. The Tribunal without considering the purpose of keeping the bank guarantees or return them for encashing, can always pass an order in accordance with law, as settled by the Apex Court in respect of bank guarantee being given by the parties, while executing the contract. 38. This Court finds that in the present case, application filed by the respondent has also been dismissed and as such, the dispute which is pending between the parties will be decided as per the claim which has been put forward and the defence which has been taken by the respondent-JMRC. 39. This Court finds that the issue relating to grant/refusal/modification is to be considered by the Arbitral Tribunal under Section 17 of the Act of 1996 and as such, this Court under Section 37 of the Act of 1996 will not substitute its findings in view of said power being available to the Tribunal but by exercising it judiciously by keeping in mind the well settled principles of passing/continuing/varying interim order. 40. This Court finds that the impugned order dated 19.05.2023, is required to be quashed and set-aside and the matter is remanded back to the Arbitral Tribunal to consider the application filed by the appellant in accordance with the law and reasoned and speaking order may be passed. 41. This Court, by keeping in mind the validity period of bank guarantees given by the appellant, expects that such application may be decided expeditiously in accordance with the law. 42. Consequently, the present civil misc. appeal stands allowed.