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TMI Blog2018 (4) TMI 2008X X X X Extracts X X X X X X X X Extracts X X X X ..... ucture and Services Private Limited O.M.P. (I) COMM 485/2017, be released to the Claimant upon the following conditions being fulfilled by the Claimant: i. Handing over of the balance Original Sale Deeds in possession of the Claimant to the Arbitral Tribunal forthwith, to await further Orders that it may pass; ii. The Claimant should file an undertaking that they will execute the documents securing the easement rights of the Respondent with respect to the Wind Power Project in Rojwas, and depositing them with the Arbitral Tribunal forthwith, to await further Orders that it may pass; iii. In case the above condition is not complied with by the Claimant, the Tribunal may pass appropriate Orders, including bringing back the amount which is being released pursuant to this Order. iv. Furnishing a Bank Guarantee to the Respondent securing the principal amount along with interest at a rate of 9% per annum, in the event that this Tribunal orders the encashment of the BG; v. It is made clear that the Bank Guarantee is to be kept alive during the pendency of these proceedings and to be made over to the Respondent in the event that this Tribunal holds in its favour." 3. As a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd would abide by further directions in the present petition or as may be given in the arbitral proceedings that may be initiated between the parties. The fee of the Local Commissioner is fixed at Rs. 75,000/-, to be paid by the petitioner. The petitioner will also make the arrangement for his travel, stay and other expenses. Upon such operationalization of the WTGs, the respondent will not interfere with the functioning of the WTGs in any manner till the next date of hearing. The petitioner will ensure that the Intellectual Property Right of the respondent in the equipments and flash cards are fully protected and are not disclosed to any third party. The petitioner will operate the WTGs strictly in accordance with the operating manual of the machines." 5. Thereafter, by an order dated 22.02.2018, the Arbitral Tribunal was constituted and the petitions under Section 9 of the Act, pending before this Court, were ordered to be treated as an application under Section 17 of the Act before the Arbitral Tribunal. Interim arrangement arrived at between the parties on 22.12.2017 was ordered to be continued during the pendency of the applications under Section 17 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating that the BG can be validly invoked even if a Moratorium is declared under Section 14 of the Code." 8. The Arbitral Tribunal, after relying on various judgments of the Supreme Court relating to the Law of Bank Guarantee, concluded that even if insolvency proceedings are invoked against the respondent, encashment of the bank guarantee may not be stayed. The Arbitral Tribunal, as far as the balance of equity and interim arrangement between the parties is concerned, further concluded as under: "16. Section 17 of the A & C, Act, 1996 bestows on the Arbitral Tribunal wide powers to make interim arrangements that are just and convenient. The arrangement as contemplated in paragraph 11 of Order No. 8 dated 8th March, 2018 are indubitably beneficial to both parties. The Claimant will be able to secure its credit rating with its Banks. The Respondent will earn a higher interest than what is presently payable on the FDR deposited with the Registrar General. The Hon'ble High Court vide Order dated 22nd December, 2017 in O.M.P (I) COMM 488/2017 titled Green Infra Wind Energy Assets Limited v. ReGen Infrastructure and Services Private Limited, by way of consent of both parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Arbitral Tribunal by the appellant seeking release of the amount deposited with the Registrar General in its favour. The only arguments raised by the appellant before the Arbitral Tribunal seem to be that the respondent being in default of its obligation under the Agreement(s) was not entitled to the release of the amount in its favour and further that the interest of the appellant may be jeopardised in case any proceedings under the Insolvency and Bankruptcy Code, 2016 are initiated against the respondent. The Tribunal considered both the submissions. 11. As far as the first submission was concerned, the Tribunal found a balance in the form of directing the respondent to deposit the original Sale Deeds in relation to the land in question and also documents securing the easementary rights in favour of the appellant before the Arbitral Tribunal. It further directed that in case these documents are not deposited, the Tribunal may pass appropriate orders, including bringing back the amount which has been released pursuant to the said order. 12. As far as the apprehension of the appellant that in case the insolvency proceedings are initiated against the respondent, it would not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph:(SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in ..... 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