JUDGMENT : Ravi Krishan Kapur J. 1. GA/5/2023 is an application filed by the award-holder/petitioner seeking directions on the award debtor/respondent to furnish cash security for a sum of Rs.19,70,98,273/- and also permit withdrawal of the entire deposited amount (including any additional amount) on such terms and conditions as this Court thinks fit and proper. 2. Briefly, the disputes between the parties arise out of a works contract for construction of a multi-storied bus terminus and commercial complex at Serampore, West Bengal. Disputes and differences having arisen between the parties, the award holder was compelled to initiate arbitration proceedings for recovery of their dues. Ultimately, by an award dated 29th June, 2020, a sum of Rs.14.68 crores together with interest thereon was awarded in favour of the petitioner. 3. Being aggrieved by the award, the respondent had filed an application under section 34 of the Arbitration and Conciliation Act, 1996. Subsequently, the respondent had also filed an application for stay of the award. By an order dated 16th September, 2021, stay of the award was granted upon the respondent furnishing security for an amount of Rs. 10 crores (half in cash and half by way of bank guarantee) with the Registrar, Original Side. Being dissatisfied with the order dated 16th September, 2021, the respondent preferred a Special Leave Petition which was dismissed by an order dated 5 June, 2022, granting liberty to the petitioner to pray for withdrawal of the amount deposited subject to terms and conditions as this Court may direct. 4. In the above background, the petitioner had filed an application being GA/2/2022 seeking permission to withdraw Rs.5 crores lying deposited with the Registrar, Original Side of this Court. The said application is still pending. In view of the common questions of law and fact raised in both these applications the same were heard analogously. 5. On behalf of the petitioner, it is submitted that the prayer for additional cash security of Rs.19,70,98,273/- over and above the amount of Rs.10 crores deposited in terms of the order dated 16th September, 2021 ought to be granted. The arbitral award as on 29th June, 2020 was for Rs.22,40,35,152/- and has now escalated to Rs.29,93,40,754/- due to the interest component in terms of the award. It is also contended that the petitioner is in dire needs of funds to carry on business. The arbitral award as on 29th June, 2020 was for Rs.22,40,35,152/- and has now escalated to Rs.29,93,40,754/- due to the interest component in terms of the award. It is also contended that the petitioner is in dire needs of funds to carry on business. The subsequent event of an amount of approximately Rs.7.5 crores having accrued on account of interest and the requirement of the petitioner to seek withdrawal of the amount furnished as security warrants reconsideration of the security furnished in terms of section 36(2) of the Act. In support of such contentions, the petitioner relies on Manish v. Godawari Marathawada Irrigation Development Corporation 2018 SCC OnLine SC 3863, State of West Bengal v. BBM Enterprises (A.P. No. 808 of 2022), Damodar Valley Corporation v. Reliance Infrastructure Limited 2022 SCC OnLine Cal 553 and Dilip Kumar Chatterjee v. State of West Bengal (E.C. No. 467 of 2019). 6. On behalf of the respondent, it is contended that there is no provision under the Act which provides for withdrawal of the amount furnished as security under section 36 of the Act. The Act is a consolidating Act and a complete Code by itself. The provisions of the Code of Civil Procedure, 1908 are merely applicable as guidance. In the absence of any specific provision, the High Court exercising jurisdiction under the Act does not have any power to pass orders on equitable considerations. Section 36(2) of the Act only contemplates securing an award. There is no scope for exercising any equitable jurisdiction in permitting the prayer for withdrawal of the awarded amount or any portion thereof. Any such prayer is in the nature of restitution and is impermissible under the Act. In any event, once the enforceability of the award has been stayed, any review of such order would tantamount to enforcement of the award. In support of such contentions, the respondent relies on Fuerst Day Lawson -vs- Jindal Export (2011) 8 SCC 333 , Pam Development (P) Ltd -vs- State of West Bengal (2019) 8 SCC 112 , Shiv Kumar Sharma -vs- Santosh Kumari (2007) 8 SCC 600 , Supreme Court Bar Association -vs- Union of India (1998) 4 SCC 409 . 7. In support of such contentions, the respondent relies on Fuerst Day Lawson -vs- Jindal Export (2011) 8 SCC 333 , Pam Development (P) Ltd -vs- State of West Bengal (2019) 8 SCC 112 , Shiv Kumar Sharma -vs- Santosh Kumari (2007) 8 SCC 600 , Supreme Court Bar Association -vs- Union of India (1998) 4 SCC 409 . 7. Section 36 of the Act provides as follows: (1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court. (2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose. (3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing: Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).] 2[Provided further that where the Court is satisfied that a prima facie case is made out that,- (a) the arbitration agreement or contract which is the basis of the award; or (b) the making of the award was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under section 34 to the award. Explanation.--For the removal of doubts, it is hereby clarified that the above proviso shall apply to all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016).] 8. In Union of India vs. Amitava Paul, AIR 2015 Cal 89 , a Full Bench of this Court held as follows: Under such circumstances, when the Court chooses to exercise its discretion in favour of the appellant State to grant stay of execution of a money decree it must balance the equities between the parties and ensure that no undue hardship is caused to a decree-holder due to stay of execution of such decree. Hence, in appropriate cases, the Court in its discretion may direct deposit of a part of the decretal sum so that the decree-holder may withdraw the same without prejudice and subject to the result of the appeal. Such direction for deposit of the decretal sum is not for the purpose of furnishing security for due performance of the decree but an equitable measure ensuring part satisfaction of the decree without prejudice to the parties and subject to the result of the appeal as a condition for stay of execution of the decree. To hold that the Court is denuded of such equitable discretion while granting stay of execution of a money decree in favour of the Government, would cause grave hardship to deserving decree-holders who in the facts of a given case may be entitled to enjoy part satisfaction of the decree without prejudice and subject to the result of the appeal as a condition for stay of execution of the entire decree. 9. In Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhal & Co.. (2005) 4 SCC 1 , the Hon’ble Supreme Court while interpreting of the Code of Civil Procedure, 1908 Order 41 Rule 5, it was held as follows: “6. Order 41 Rule 1(3) CPC provides that in an appeal against a decree for payment of amount the Appellant shall, within the time per permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit. Order 41 Rule 1(3) CPC provides that in an appeal against a decree for payment of amount the Appellant shall, within the time per permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit. Under Order 41 Rule 5(5), a deposit or security, as abovesaid, is a condition precedent for an order by the appellate court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the appellate court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the appellate court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course a discretionary power, and is meant to be exercised in appropriate cases.” 10. In Dilip Kumar Chatterjee vs. State of West Bengal and Another (Unreported decision dated 18th October, 2023 passed in GA/4/2022 in EC/464/2009) this Court, inter alia, held as follows: 7. In deciding the question of stay, the provisions of the Code of Civil of Procedure, 1908 may be followed as a guiding tool and the same are to be applied only insofar as the same are not inconsistent with the spirit and provisions of the Act [Pam Developments Private Limited vs. State of West Bengal (2019) 8 SCC 112 ]. Post amendment, section 36(2) protects an award holder inasmuch as the section has been introduced keeping in mind that challenges to awards take years to attain finality. Ordinarily, in cases of money decrees, the most commercially suitable form for securing an award holder is by way of cash or bank guarantee. If such cash or bank guarantee is furnished it would be commercially prudent to permit the award holder to utilize the same on terms and conditions rather than keep the money lying idle. Ordinarily, in cases of money decrees, the most commercially suitable form for securing an award holder is by way of cash or bank guarantee. If such cash or bank guarantee is furnished it would be commercially prudent to permit the award holder to utilize the same on terms and conditions rather than keep the money lying idle. The relief for withdrawal of money on terms and conditions is also in consonance with the object and implicit in section 36(2) of the Act. 8. In view of the aforesaid, there is no merit in the submission on behalf of the award debtor that there is no power to permit withdrawal of the security and the same cannot be granted by Court. The power to permit withdrawal of security depends on the terms and conditions on which stay of an award is to be granted. Any exercise of discretion in this regard should be with the aim of protecting both the award holder as well as the award debtor. [Pam Developments Pvt. Ltd. vs. State of West Bengal (2019) 8 SCC 112 , Damodar Valley Corporation vs. Reliance Infrastructure Limited unreported judgment dated 25.03.2022 in AP/40/2020, Union of India vs. Pam Development Pvt. Ltd. unreported judgment dated 17.05.2022 in AP/1121/2016, State of Maharashtra through the Executive Engineer vs. Patel Engineering Ltd. &Ors. 2021 SCC OnLineBom 12596, The State of West Bengal vs. Dilip Kumar Chatterjee unreported judgment dated 30.01.2023 in AP/557/2012 and The State of West Bengal &Ors. vs. M/s BBM Enterprise unreported judgmentdated 25.07.2023 in AP/808/2022]. 11. In its amended form, section 36 contemplates a party now being statutorily obliged to furnish security in order to obtain stay of an arbitral award. The purpose of security is to ensure and facilitate fulfilment and enjoyment of the ultimate fruits of an award. In such matters, there cannot be any straight jacket formula. Each case has to be decided on its own merits. In exercising the powers under section 36 of the Act, the provisions of the Civil Procedure Code, 1908, may be taken into consideration. However, even though not mandatory, a Court is obliged to give "due regard to the provisions of the Code”. The order also requires to be reasoned. Needless to say, the discretion by a Court has to be exercised judicially and not arbitrarily depending on the facts and circumstances of each case. 12. However, even though not mandatory, a Court is obliged to give "due regard to the provisions of the Code”. The order also requires to be reasoned. Needless to say, the discretion by a Court has to be exercised judicially and not arbitrarily depending on the facts and circumstances of each case. 12. In this background, it is important to examine the nature of an order passed in an application under section 36 of the Act. There are different situations which may arise even after the passing of an order under this section. The parties or any one of them may need to approach Court in view of subsequent events or changed circumstances. A party may wish to substitute the form of security originally directed by the Court. The security may also require to be renewed, revalued or re-examined. Thus, once a Court exercises its jurisdiction under section 36 of the Act and directs security in a particular mode and manner, it always retains inherent jurisdiction in respect of such security. In such circumstances, any order passed at this stage of the proceeding is an interim order and by nature subject to alteration, variation or modification. As such, a Court always retains the power and jurisdiction to pass necessary orders. [Damodar Valley Corporation v. Reliance Infrastructure Limited 2022 SCC OnLine (Cal)]. 13. There is also no question of res judicata as contended by the respondent. In Arjun Singh v. Mohindra Kumar AIR 1969 SC 993, it has been held as follows: “14. It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court, usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situation which subsequently emerge.” 14. A reading of the order dated 5 January, 2022 passed by the Supreme Court also preserves and recognizes the right of the petitioner to seek withdrawal of the amount already deposited. A reading of the order dated 5 January, 2022 passed by the Supreme Court also preserves and recognizes the right of the petitioner to seek withdrawal of the amount already deposited. The purpose of section 36 is for securing the awarded amount. The object of the section in its amended form is a step in aid of and keeping with the statutory intention of giving primacy to the finality of the arbitral award. The question of withdrawal of the same is commercially prudent and can always be taken into account in balancing the equities between the parties. It does not serve any commercial purpose to allow money to remain lying idle. In view of the above, the contention that there is no power to direct withdrawal of the sum deposited is rejected. 15. It is also contended that the respondent is a public undertaking and is not facing any financial crisis. In Pam Development Pvt. Ltd. v. State of West Bengal, (2019) 8 SCC 112 it has been held that, "in certain cases few provisions exist under the Civil Procedure Code, 1908 which provide for differential treatment to the government. However, no special or exceptional treatment need be given to the State, while considering an application under Section 36 of the Act". Hence, there is no question of the respondent deserving any special treatment on this account. The petitioner has cited facing a cash flow problem and requirement of immediate funds for business purposes. The decision not to seek withdrawal of the money lying pursuant to the initial order dated 16 September 2021 is always subject to reconsideration. The substantial increase of the interest component after passing of the award is also a fact which has subsequently emerged. Admittedly, the awarded amount stood at Rs. 22,40,35,183/- as on 29 June 2020. After, the passing of the order by the Hon’ble Supreme Court, post award interest @ 9.50% calculated from January 6, 2022 till November 16, 2024 has accumulated to Rs. 7,67,06,721.12/-. This is no meagre amount. In view of the clear mandate of the section, it is now obligatory for the respondent to secure the entirety of the awarded amount so that the security ordered is real. 16. In such circumstances, both the above facts are subsequent events which warrant re-examination of the security furnished in terms of the order dated September 16, 2021. In view of the clear mandate of the section, it is now obligatory for the respondent to secure the entirety of the awarded amount so that the security ordered is real. 16. In such circumstances, both the above facts are subsequent events which warrant re-examination of the security furnished in terms of the order dated September 16, 2021. Significantly, the above facts have transpired after passing of the order by the Supreme Court dated 6 January 2022. The attempt of the award holder/petitioner to reopen the aspect of security for the balance amount which was also covered in terms of the order dated 16 September 2021 read with the order dated 5 January 2022 stands rejected. 17. In view of the above, GA 5 of 2023 stands allowed. There shall be an order in terms of prayers (a), (b) and (c) of the Notice of Motion. It is clarified that the amount to be secured by the judgment debtor is only to the extent of Rs.7,69,50,360/-. To this extent, prayer (a) of the Notice of Motion stands modified. Such security is directed to be furnished to the extent of Rs.3.50 crores in the form of cash security or its equivalent form to the satisfaction of the Registrar, Original Side, High Court and the remaining amount of Rs.4,19,50,360/- in the form of bank guarantee of any nationalised bank also to the satisfaction of the Registrar, Original Side, High Court. 18. Liberty is also granted to the petitioner/award holder to seek withdrawal of the sum of Rs.5 crores lying as cash security in terms of the order dated 16 September 2021 upon furnishing counter security in the form of bank guarantee of an equivalent amount to the satisfaction of the Registrar Original Side of this Court. To this extent, the Registrar, Original Side is permitted to encash any fixed deposit created in respect of the amount of Rs.5 crores. Liberty is also granted to the Registrar, Original Side to encash the bank guarantees furnished by the respondent/award debtor and transfer such proceeds for the balance amount of Rs.5 crores furnished in terms of the order dated 16 September 2021, to the petitioner upon the petitioner furnishing a counter bank guarantee for an equivalent amount. Liberty is also granted to the Registrar, Original Side to encash the bank guarantees furnished by the respondent/award debtor and transfer such proceeds for the balance amount of Rs.5 crores furnished in terms of the order dated 16 September 2021, to the petitioner upon the petitioner furnishing a counter bank guarantee for an equivalent amount. Similar directions for withdrawal of the security be granted in respect of the amount of Rs.3.50 crores directed in terms above and for encashment of the proposed bank guarantee also directed to be deposited in terms of this order, upon furnishing of bank guarantees for an equivalent amount to the satisfaction of the Registrar, Original Side. All such guarantees are directed to be kept alive until further orders of Court and should be renewed at least one month before the date of expiry. In the event, security as directed above is furnished, there shall be a stay of enforcement of the award for the additional awarded amount as directed above. In case the petitioner does not withdraw the above amount of cash, the Registrar, Original Side, is directed to make a fixed deposit of the said amount with any nationalised bank and keep the same renewed until further orders of the Court. The order dated 16 September 2021 stands modified to the above extent. The above exercise is to be completed within a period of four weeks from the date of passing of this order. 19. In view of the above, nothing survives in GA 2 of 2022 and the same stands disposed of. With the above directions, GA 5 of 2023 also stands disposed of.