Babu Ram And Company, Etmadpur District Agra v. Food Corporation Of India
1984-10-16
N.N.SHARMA
body1984
DigiLaw.ai
JUDGMENT N.N. SHARMA, J. 1. THIS revision is directed against judgment and decree of Sri Ram Kishore, learned Civil Judge, Agra dated 17-10-1981 arising out of Original Suit No 335 of 1974 by which learned Judge set aside a part of the judgment and decree dated 11-8-1979 recorded by Sri P. K. Agarwal, learned 1st Additional Munsif, Agra. Learned Munsif awarded the interest at the rate of Rs 12 per cent per annum from the date of award viz. 7-6-1974 till the date of payment. THIS direction was set aside in appeal by the impugned judgment and decree. 2. IT appears that plaintiff-revisionist applied under section 14 of the Arbitration Act (Act No. X of 1940) to make the award rule of the Court. Plaintiff alleged that it is a registered firm. IT acted as the purchasing agent of the defendant in the year 1971. In the bills submitted by plaintiff to the defendant, a sum of Rs. 3833.57 P. was deducted wrongly by defendant on account of quality cut in respect of articles supplied. Plaintiff objected to it and the matter was eventually referred to the arbitrator. Arbitrator gave his award on 22-5-1974 whereby arbitrator directed the defendant to pay the aforesaid amount within fifteen days failing which interest was awarded at the rate of Rs. 12 per cent per annum. Learned trial court made the award rule of the court and also directed the respondent to pay Rs. 3833.57 P. alongwith interest at the rate of Rs. 12 per cent per annum from 7-6-1974 till the date of payment. Respondent carried the matter in appeal which was allowed by the impugned judgment and decree to the extent given above. Aggrieved by this decision, this revision has been preferred by the revisionist. 3. I have heard learned Advocates for parties and perused the record. 4. THE simple point which falls to be considered in this revision is as to whether the arbitrator had authority to award interest from the date of award till the date of payment? If so, at what rate? It appears that learned appellate court was led by Vulson v. Kelukutty reported in AIR 1959 Kerala 174. A perusal of this authority shows that two plaintiffs filed original suits nos. 50 and 53 of 1954 for recovery of Rs.
If so, at what rate? It appears that learned appellate court was led by Vulson v. Kelukutty reported in AIR 1959 Kerala 174. A perusal of this authority shows that two plaintiffs filed original suits nos. 50 and 53 of 1954 for recovery of Rs. 6300/- with interest and costs from the sole defendant on the basis of a pronote executed by the latter in favour of second plaintiff. On the basis of the award made by Sri P. S Bharatha Iyer, the claim was allowed on 10-9-1956. An objection was preferred against the award which was rejected. Hon'ble Judge referred to Section 29 of Indian Arbitration Act and referred to Thavardas Perumal v. Union of India, AIR 1955 SC 468 laying down the dictum extracted below:- "An arbitrator is not a Court which has been given special power to give interest after suit under Section 34 CPC. In the absence of that section, even a Court far less an arbitrator would not have power to give future interest at all after suit: (S) AIR 1955 SC 468 Rel. on." 5. I have carefully perused the aforesaid authority. Section 29 of Arbitration Act reads as below: "29. Interest on award:-Where and in so far as an award is for the payment of money the court may in the decree order interest, from the date of the decree at such rate as the Court deems reasonable, to be paid on the principal sum as adjudged by the award and confirmed by the decree. 6. THERE is nothing in the aforesaid provision to cut down the power of arbitrator to award interest subsequent to the making of the award. The facts given above shows that the claim of revisionist was for a liquidated sum. It is further significant to note that the reference to arbitrator for determination of disputed sum did not include the question of interest. In the instant case, the arbitrator has awarded future interest only. The matter came up for consideration in the Executive Engineer, Rural, Engineering Division, Cuttack West, Cuttack v. Surendrarath Kanungo reported in AIR 1980 Orissa 119 which posited:- "Unless there is specific clause in the agreement prohibiting award of interest the Arbitrator has jurisdiction to grant interest on the principal amount awarded by him on the different items of claim referred to him for arbitration.
The natural conception of the word 'interest' is the ordinary or normal profit which the person entitled to the principal money might have made if he had the use of the said money, or his expected loss under usual or ordinary circumstances due to the non-payment of the same at the proper time. Apart from the express provisions for payment of interest in different statutes or in the contracts between the parties, interest can be directed to be paid in an arbitration proceeding on ex gratia leases by way of compensation for the deprivation of the use of the principal amount. If interest can be awarded by the Arbitrator on that basis in order to compensate the loss suffered by the man entitled to the principal amount due to deprivation of the use of the said amount, there is no reason why the Arbitrator cannot on the same principle grant future interest from the due date till its realisation. True it is that provision of Section 34, CPC is not applicable to the proceedings before the Arbitrator but there is nothing wrong for the Arbitrator to call into aid the principles of that section for awarding interest, especially when one of the dispute referred to him for adjudiation relates to payment of interest." 7. IN that authority, it was further observed at page 121:- "It is next contended by Mr. Mohapatra, the learned counsel for the appellant, that there is nothing in any relevant statute or contract enabling the Arbitrator to grant interest on the principal amount, and so his direction to that effect in the award is without jurisdiction and hence the decree for payment of interest is illegal and has to be set aside. It is now well settled by a series of decisions of this and of the Supreme Court, unless there is specific clause in the agreement prohibiting award of interest, the Arbitrator has jurisdiction to grant interest on the principal amount awarded by him on the different items of claim referred to him for arbitration (See Firm Madanlal Roshanlal v. Hukumchand Mills Ltd., AIR 1967 SC 1030 ; Union of INdia v. Bungo Steel Furniture (P) Ltd., AIR 1967 SC 1032 ; M/s. Ashok Construction Co.
v. Union of INdia, 1970 SCD 530 : State of Orissa v. Govinda Choudhury, 1971-37 Cut LT 937 ; State of Orissa v. Govinda Choudhury and Sons, 1974 (2) Cut WR 917 ; Executive Engineer v. Shankar Maharana, AIR 1978 Orissa 121 and Executive Engineer v. D. N. Senapati, (1979) 47 Cut LT 472. The natural conception of the word 'interest is the ordinary or normal profit which the person entitled to the principal money might have made if he had the use of the said money, or his expected loss under usual or ordinary circumstances due to the non-payment of the same at the proper time, Apart from the express provisions for payment of interest in different statutes or in the contracts between the parties, interest can be directed to be paid in an arbitration proceeding on ex gratia basis by way of compensation for the deprivation of the use of the principal amount. This principle has been adopted by the Kerala High Court in the case reported in Commr. of INcome-tax Kerala v. Periver and Pareekanni Rubbers Ltd., 1973-87 ITR 666 ; Commrs. of INland Revenue v. Ballantine, 1924-8 Tax Cases 591: Simpson v. Maurice's Executors, (1929) 14 Tax Cases 580 and by this Court in Messrs Govinda Choudhury and Sons v. Commr. of Income-tax, Orissa, ILR 1977 Cut. 664. IN view of the above well settled law on this point the jurisdiction of the arbitrator to award interest cannot be questioned." 8. I have carefully perused the aforesaid authorities of the Supreme Court also I respectfully agree with these observations which I have quoted in ex-tenso and rind that in the instant case, it was open to the arbitrator to award interest on the amount awarded on 22-5-1974, in case of default in payment of the said amount within 15 days of the award as there was no prohibition in terms of reference in awarding interest by arbitrator. As regards the rate of interest which has been scaled down by learned appellate court, I find that Section 34 of Code of Civil Procedure, which incorporates principles relating to the award of interest, is worded as below:- "34.
As regards the rate of interest which has been scaled down by learned appellate court, I find that Section 34 of Code of Civil Procedure, which incorporates principles relating to the award of interest, is worded as below:- "34. Interest :- (1) Where and in so far as a decree Is for the payment of money, the court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit with further interest at such rate not exceeding six percent per annum as the Court deems reasonable on such principal sum) from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. (2) Where such a decree is silent with respect to the payment of further interest (on such principal sum) from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie. (Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions." 9. IN the instant case, there can be hardly any dispute on the point that the transaction in question was purely commercial. The rate of interest 12 per cent per annum in these days cannot be regarded as excessive. 10. IN the result, the revision is allowed with costs. The impugned order is set aside to the extent given above. Judgment and decree of learned 1st Additional Munsif dated 11-8-1979 are restored. Revision allowed.