JUDGMENT
Pasayat, J.
1. Order passed by the Arbitration Tribunal, Bhubaneswar (in short, the Tribunal) holding that petitioner’s dispute cannot be entertained unless security deposit is made, as it cannot entertain and proceed to act on any reference unless security deposit as prescribed is furnished by the Contractor is under challenge in this writ application.
2. Factual position is almost undisputed and is as follows :
A reference was received by the Tribunal from the Court of learned Civil Judge (Senior Division), Bhubaneswar under Section 20(4) of the Arbitration Act, 1940 (in short, the ‘Act’) in O.S. No. 310 of 1993-I for adjudicating disputes raised between the petitioner and the State of Orissa acting through the Executive Engineer, Badanala Irrigation Project, Badanala in the district of Rayagada. Dispute related to the work executed under Agreement No. 14LCB of 1988-89 for execution of the word “Excavation of Badanala Main Canal from RD 7535 M to 12,000 N of Badanala Irrigation Project”. Before entertaining the reference the Tribunal directed the claimant-contractor to furnish security deposit of Rs. 98,435/- in the shape of N.S.C. or Postal Savings Bank Account duly pledged in favour of the Registrar, Arbitration Tribunal, Bhubaneswar. Claimant-petitioner filed an objection stating that it was not necessary for him to furnish such deposit, as reference in his case has been made to the Tribunal under Section 20(4) of the Act in which it is to adjudicate the dispute, and cannot go beyond terms to ask for security deposit. Further stand was that Tribunal can ask for security deposit only if arbitration reference was filed by claimant directly before it. The Tribunal rejected contention holding that Rule 13(1) of the Arbitration Tribunal Rules, 1979 (in short, the ‘Rules’) made the position clear. Reference was also made to Clause 53(f) of the Agreement, entered into between the parties. Ultimately, it was concluded that no distinction is made between dispute which was filed directly before the Tribunal and one which was referred to it by another Court.
3. Stand taken before the Tribunal was reiterated by learned counsel for petitioner before us. Learned counsel for State submitted that the position has been clarified by this Court in M.A. No. 255 of 1985 (Sri Gopinath Patio v. State of Orissa, disposed of on 6-12-1989) and stand of petitioner is clearly untenable.
4. To appreciate rival stands of the parties, it is necessary to take note of Rule 13(1) of the Rules, and Clause 53(f) of the Agreement. They read as follows :
Rule 13(1):
“13(1). No reference for arbitration shall be maintainable unless the contractor furnishes a security deposit as prescribed in the agreement. The sums so deposited shall on the termination of the arbitration proceeding be adjusted against the cost, if any, awarded by the Tribunal against the contractor and the balance remaining after such adjustment, or in the absence of any such cost being awarded, the whole of the sum shall be refunded to him within one month from the date of the award provided, however, that when the Government makes reference for arbitration, no security deposit shall be required to be furnished.”
Clause 53(f) of the agreement:
“53(f). Where the party invoking arbitration is the contractor, no reference for arbitration shall be maintainable unless the contractor furnishes security deposit of a sum determined according to the table given below and the same so deposited shall, on termination of the arbitration proceeding, be adjusted against the cost, if any, awarded by the Tribunal against the party and balance remaining after such adjustment or in absence of any such cost being awarded, the whole sum shall be refunded within one month from the date of the award.”
A bare reading of the aforequoted Rule makes it clear that no reference for arbitration shall be maintainable unless requisite security deposit is furnished, if it is so provided in the agreement between the parties. Language of the provision is in imperative terms and maintainability of reference is dependant upon furnishing a security deposit as prescribed in the agreement. Therefore, to bring in application of Rule 13(1) of the Rules, three things are necessary. Firstly, there must be a reference for arbitration, secondly, the agreement to which the dispute relates provides for furnishing of security and thirdly, unless the contractor furnishes a security deposit, the reference is not maintainable. In order to make reference maintainable, security deposit as prescribed in the agreement has to be furnished. There is no exception to it so far as private parties are concerned. However, in case of Government no security is required to be furnished. Clause 53(f) of the agreement provides quantum of security deposit and details are set out in the table given below the clause. The word “maintainable” is derived from the word “maintain.” To “maintain” an action is not always the same as bringing an action; it connotes the idea, of supporting an action which has already been brought. The verb “to maintain” signifies to support what is already brought into existence. The ordinary meaning of the word “maintain” in legal phraseology is to begin; to bring, to commence, to institute. In another sense it may mean to carry on, to continue; to prosecute with effect; to continue or preserve in or with. The word when applied to actions, has three meanings. One meaning of the term is to commence; to begin; to bring; to institute. However, it has been said with reference to actions that ‘maintain’ means something more than to commence, and carries a different meaning from ‘begin’ or ‘institute’. Thus the second meaning of the word is to continue; to carry on; to support, as contradistinguished from to institute, the action that has already been brought; to perservere in or with; to commence and prosecute to a conclusion. In accordance with this view, it has frequently been said that to maintain a suit is to uphold, continue on foot, and keep from collapse a suit already begun. Where the word is employed to signify cither the first or second meaning, it may comprehend the institution as well as the support of the action, including the commencement of or right to institute an action, and in this sense it implies that an action must be begun before it can be maintained. The third meaning of the term is to commence and prosecute to a conclusion that which has already been begun. In addition, the term is often used to signify an action yet to be instituted. A prohibition against the maintaining of an action or suit may or may not indicate a prohibition against beginning or commencing it. (See Corpus Juris Secundum, Volume 54). To ‘maintain’ an action is to uphold, continue on foot, and keep from collapse a suit already begun, or to prosecute a suit with effect. To maintain an action or suit may mean to commence or institute it; the term imports the existence of a cause of action. (See Black’s Law Dictionary, Sixth Edition).
Obligation being of a mandatory nature, the Tribunal was justified in holding that it cannot entertain and proceed to act on a reference unless security deposit is furnished.
5. Learned counsel for petitioner submitted that if it is held that security has to be furnished, a reasonable time may be granted. We find from the impugned order that time was granted till 11-9-1995 for furnishing security deposit. Admittedly, that has not been done. If requisite security deposit is furnished within a month from today, the Tribunal shall proceed in the matter in accordance with law.
6. The writ application fails and is dismissed subject to directions given above. No costs.
Fradipta Ray, J.
7. I agree.