JUDGMENT - D.R. DHANUKA, J.:---By this petition filed under section 33 of the Arbitration Act, 1940, the petitioner has impugned Award dated 4th April 1991, made by Shri E.C. Saldanha, Retired Secretary, Irrigation Department, Government of Maharashtra, Bombay, in his capacity as an Umpire, one of the question involved in this petition is as to whether the present petition can be considered as a 'pending proceeding' within meaning of the ratio of judgment of the Apex Court dated 12th December 1991 in the case of Secretary, Irrigation Department, Government of Orissa ors., (Civil Appeal No.1403 of 1986) reported in 1991 IV Supreme Views Law Reporter (C), 487, and what is the meaning and effect of 'prospective operation' of the ratio of the judgment. The answer is plain and simple as discussed in later part of this judgment. The respondent are clearly entitled to rely on the said judgment and the present proceeding is undoubtedly a pending proceeding. 2. By the impugned award, the learned Umpire directed the petitioner to pay to the respondents a sum of Rs.49,15,095/- in addition to Rs. 50 lacs already paid by the petitioner against the interim award dated 17th November 1989. By Clause 3(a) of the said award, the Umpire directed the petitioner to pay the said amount to the respondents. It was observed in the said paragraph of the award that the said sum of Rs.49,15,095/- included interest on certain items only upto the day before the start of the pendents lite period which according to the Umpire commenced from 8th July 1989 when arguments were made before the two Arbitrators. It was further observed in the said clause of the award that pendente lite interest was awarded in view of the recent Supreme Court judgments holding that the award pendente lite interest was out side the power of Arbitrators or the Umpire. By Clause 3(b) of the said award, the learned Umpire issued directions for preparation of final bill. Two of such directions are relevant for the purpose of this petition. In the first instance, the learned Umpire directed that the final bill would be prepared on the basis of the measurements recorded by the petitioner for the work "at contracted rates" but exluding extra items and escalation there on, the said items having been included in the sum of Rs.49,15,095/-. In the first instance, the learned Umpire directed that the final bill would be prepared on the basis of the measurements recorded by the petitioner for the work "at contracted rates" but exluding extra items and escalation there on, the said items having been included in the sum of Rs.49,15,095/-. Secondly it was directed that whilst preparing and paying the final bill due, allowance should be made for inter-contract transfers of Schedule 'A' materials from one work to another relating to the contracts awarded to the claimants M/s Khare Tarkunde for construction of the Chandrpur Thermal Power Station i.e. Contracts 'B' 'C' 'D' and 'E' pertaining to Units Nos. 1 to 4 . By the said award, it was directed that recoveries for unacounted steel recoverable after adjustment of transfers from other contracts should be made at Schedule 'A' rates only and not at penal rates. Certain other directions were also given by the said award which need not be summarised for the purpose of disposal of this petition. 3. Six different contracts were arrived at between the respondents and the petitioners in relation to carrying out of different items of work for Chandrapur Units particularised in Exhibit 'A' to petition. This petition concerns the award in respect of claims pertaining to Agreement dated 15th April 1980 for work of super-structure for Chandrapur Units Nos. 1 and 2. Disputes and differences arose between the parties in respects of claims arising under the said argument. The said agreement contained the arbitration clause. On 3rd February 1987, the respondents addressed 'A' letter to the Chief Engineer (Construction), General-I, Maharashtra State Electricity Board, communicating to him broad facts of despite arising during the execution of various contracts. A copy of the said letter is Exhibit "B" to the petition. On 4th March 1987, the petitioner appointed Shri M.M. Bendre as an Arbitrator for referring the disputes arising out of six contracts awarded to the respondents for Chandrapur Thermal Power Station. On 24th September 1987, the petitioner appointed Mr. Arunkumar Shenolikar as an Arbitrator. The two Artitrators made an interim award dated 17th November 1989 in sum of Rs. 50 lacs in favour of the respondents. A copy of the said interim award is Exhibit 'F' to the petition. The two Arbitrators differed in making of the final award. On 24th September 1987, the petitioner appointed Mr. Arunkumar Shenolikar as an Arbitrator. The two Artitrators made an interim award dated 17th November 1989 in sum of Rs. 50 lacs in favour of the respondents. A copy of the said interim award is Exhibit 'F' to the petition. The two Arbitrators differed in making of the final award. Ultimately claims, disputes and differences relating to all the six contracts including the contract dated 15th April 1980 for work of super-structures were referred to the Umpire Shri S.C. Saldanha who was validly appointed as an Umpire by the two Arbitrators. The Umpire made an earlier award on 20th April 1990 which was duly honoured and acted upon. The said award was in respect of one of these contracts. The said award was identical in material particulars except for the figures. The Umpire made be impugned award dated 4th April 1991 referred to in the opening part of this judgment. The learned Counsel for the petitioner impugned the said award on the following grounds: 1) The learned Umpire had no jurisdiction to award interest for the period 6th November 1987 until 8th June 1989 as this case was governed by the ratio of the judgment in the case of (Executive Engineer, Irrigation, Galimala crs., v. Abaaduta Jena (1988)1 S.C.R. 252) and the respondents were entitled to avail of the ratio of the judgment of the larger Bench dated 12th December 1991 in (Secretary, Irrigation Department, Government of Orissa ors. v. G.C. Roy)1, Civil Appeal No.1403 of 1986 overruling the said judgment as the said judgment is prospective in its operation. 2) The opening part of Clause 3(b) of the said award refers to preparation of final bill at contracted rates. This part of the award was vogues and incapable of implementation as there were no agreed or contracted rates between the parties for calculating or determining the amount of damages or compensation. The learned Counsel for the petitioner relied on averment in paragraph 13(n) of the petition in support of this plea. 3) Clause 3(b) of the award provided for recoveries for unaccounted steel at schedule 'A' rates only instead of at penal rates. The learned Counsel for the petitioner relied on averment in paragraph 13(n) of the petition in support of this plea. 3) Clause 3(b) of the award provided for recoveries for unaccounted steel at schedule 'A' rates only instead of at penal rates. The learned Counsel for the petitioner contended that this part of the award was in excess of jurisdiction of the Umpire as the Umpire could not travel beyond the contract and the relevant clause in the contract extracted in paragraph 13(o) of the petition clearly provided that such recoveries should be made at the "cost rates" or market rates" prevailing at the time of issue whichever was hire plus sales tax plus 15% unaccounted for. In the beginning, the learned Advocate General appearing for the respondents submitted that the said clause was not extracted in the petition in full and in certain situation recovery of unaccounted steel material could be directed at schedule 'A' rates instead of 'penal rates'. However, later on, the learned Advocate General appearing for the award may be modified in terms of the clause extracted in paragraph 13(o) of the petition as desired by the petitioner in order to cut short the litigation. The impugned portion of the Award is clearly severable. 5. In my judgment, there is no merit in this petition. 6. The recent judgment of the Supreme Court dated 12th December 1991 in the case of (Secretary, Irrigation Department, Government of Orissa and others v. G.C.Roy)1, (Civil Appeal No. 1403 of 1986) reported in 1991 IV Supreme Views and Law Reporter (C), 487, delivered by five Judges Bench of the Hon'ble Supreme Court is landmark judgment directly on the point in so far as the first contention of the learned Counsel for the petitioner is concerned. In the latest case before the Supreme Court, the Arbitrator had made his award on 6th August 1982 awarding interest at the rate of 9% on the awarded amount from 20th March 1980 till the date of payment or decree whichever was earlier. Civil Appeal No. 1403 of 1986 are from the order of the High Court refusing to set aside the award. After expressly overlying the three Judge Bench decision in Jena's case (supra), the larger Bench of the Supreme Court held that the Arbitrator had acted within jurisdiction in awarding pendente lite interest and the High Court had rightly upheld the award. After expressly overlying the three Judge Bench decision in Jena's case (supra), the larger Bench of the Supreme Court held that the Arbitrator had acted within jurisdiction in awarding pendente lite interest and the High Court had rightly upheld the award. K.N. Singh, C.J., speaking for the Bench of the Supreme Court, held that their decision shall only be in prospective in operation, which meant that the said decision shall be applicable only to pending proceedings. In absence of this decision, there would have been some scope for controversy as to whether arbitration proceedings commened on the date when directions were issued for filing of pleadings by the Arbitrators or whether the arbitration proceedings commenced when the Arbitrators entered upon the reference. In view of this latest judgment, there is no scope for any such controversy. As a matter of fact, subject to procedural hurdles, if any, the respondents would have been entailed to claim interest for the entire period during which the arbitration proceedings were pending. No such claim is made on behalf of the respondents. The respondents have remained content with supporting the Award. The only question which arises for consideration of the Court is as to whether the Umpire acted within jurisdiction in awarding interest for the period 6th November 1987 till 8th June 1989 even if the said period is to be assumed as part of pendente lite period i.e., the period during which arbitration proceedings were pending within meaning of the ratio of Jena's case. Relying on the ratio of the above referred judgment of the five Judges Bench of the Apex Court in G.C.Roy's case, I hold that the Umpire had acted with jurisdiction to award interest as he did. The learned Counsel for the petitioner has contend that the ratio of the judgment in G.C.Roy's case is applicable only where the award was not made prior to 12th December 1991. It is impossible to accept this submission. The proceedings before this Court are pending proceeding. The award has not acquired finality. The last but one paragraph of the judgment in G.C.Roy's case is direct and clear on the point. In the above referred case, the Hon'ble Supreme Court upheld the old Award of 1982 in pending appeal. The expression "prospective in operation" is explained by K.N. Singh, C.J. in this very judgment. The award has not acquired finality. The last but one paragraph of the judgment in G.C.Roy's case is direct and clear on the point. In the above referred case, the Hon'ble Supreme Court upheld the old Award of 1982 in pending appeal. The expression "prospective in operation" is explained by K.N. Singh, C.J. in this very judgment. Proceedings are deemed to be pending proceeding before the Court until the Award has acquired finality by being made rule of the Court and no challenge in respect thereof is pending in any appeal or revision. The above referred judgment of larger Bench is prospective in operation as stated in the judgment itself. It means that the ratio of this judgment is applicable in all pending proceeding before the Court in relation to awards made prior to 12th December 1991 arising out of petitions seeking to set aside the Award or otherwise. If the award has become final after all judicial proceeding are concluded in respect thereof, the matter finally concluded cannot be re-opended on the basis of the said judgment dated 12th December 1991 referred to hereinabove. Accordingly, this ground of challenge fails. 7. By consent, Clause 3(b) of the impugned award directing recovery for unaccounted steel as Schedule 'A' rates is modified in terms of the clause extracted in paragraph 13(C) of the petition. The relevant portion of the award on this aspect reads as under:- "Whilst preparing and paying the Final Bill due allowance should be made for inter-contract transfers of Schedule 'A' materials from one work to another relating to the contract awarded to the Claimants M/s. Khare Tarkunde for reconstruction of the Chandrapur Thermal Power Station, viz. Contracts 'B' 'C', D' 'E' pertaining to Units Nos. 1, 2,3, and 4. Recoveries for unaccounted steel recoverable after adjustment of transfers from other contracts should be made at Schedule 'A' rates only and not at penal rates." (The underlining is done to supply emphasis) 8. The modified portion of the award shall now read as under :- "Recoveries for unaccounted steel recoverable after adjustment of transfer from other contracts should be made at the cost rates or market rates whichever is higher plus sales tax plus 15 per cent to cover Board's departmental supervision charges." 9. I shall now proceed with the last ground of challenge to the impugned award urged by the learned Counsel for the Petitioner. I shall now proceed with the last ground of challenge to the impugned award urged by the learned Counsel for the Petitioner. Clause 3(a) of the impugned award pertains to extra items and escalation. Clause 3(a) of to the said award says that final bill amount shall be prepared on the basis of the measurements recorded by the petitioner for this work at contracted rates. The petitioner contends in paragraph 13(n) of the petition that there were no contracted rates between the parties for calculating or determining the amount of damages or compensation claimed. Shri Manohar Ramchandra Tarkunde, has cogently explained in paragraph 14 of his affidavit in reply dated 22nd November 1991 that the contract rates were clearly stipulated in Schedule "B" of the contract for each of the items of work and the allegations made in paragraph 13(n) of the petition were misleading. The opening part of Clause 3(b) of the Award does not refer to claims for extra payment, escalation or damages, if any. All these claims are covered by Clause 3(b) of the Award. Clause 3(b) of the Award pertains to making of the contract other than items included in clause 3(b) of the Award. It is of considerable significance that an earlier award made by the Umpire on 20th April 1990 in respect of one of the other six contract in the series similarly provided that final bill amount shall be prepared by the petitioner on the basis of measurements recorded by the petitioner for the work at contracted rates, but excluding extra items and escaltion thereof. The relevant portion of the earlier award is in identical terms. This award dated 20th April 1990 has already been acted upon and is implemented. To my mind, the opening part of Clause 3(b) of the said award does not suffer from any ambiguity and the contract clearly provided for the contracted rates. As a matter of fact, paragraph 13(n) of the petition is rather confusing as in the last sentence of the said ground it is averred that there were no agreed or contracted rates for determining the amount of damages or compensation. Extra items and escalations are included in Clause (a) of the award. Clause 3(b) of the award pertains to preparation of final bill only for 'other items'. Extra items and escalations are included in Clause (a) of the award. Clause 3(b) of the award pertains to preparation of final bill only for 'other items'. If the petitioner had no difficulty in implementing identical clause contained in the award dated 20th April 1990 of the same learned Umpire, I feel that the so called difficulty expressed by the petitioner is not genuine and there is nothing ambiguous about the said award. On this aspect , I accept the respondent case as pleaded in paragraph 14 of affidavit in reply referred to hereinabove. This ground of challenge also fails. 10. No other contentions were urged before the Court. The above referred contentions were the only contentions on which the impugned award was challenged. The only ground on which the petitioner had perhaps a plausible case fererred to in paragraphs 7 and 8 of this order does not now survive in view of the concession made on behalf of the respondents and the order of consensual modification of the Award. 11. Accordingly the petition fails except to the extent of modification thereof in terms of paragraph 8 of the judgment, and the same is dismissed with no order as to costs. 12. In exercise of my discretion under Rule 787(5) of the High Court of Judicature at Bombay High Court (Original Side) Rules, as amended, I pass a decree in terms of the award dated 4th April, 1991 as modified by me after deleting the provision made therein for interest. In exercise of the discretion conferred on this Court under section 3 of the Interest Act, 1978 and under section 29 of the Arbitration Act, 1940, I award interest on the principal amount payable under the award at the same rate i.e. 18% per anum from the date of the award till payment. In awarding interest in this manner, I follow the precedent of the judgment of the Supreme Court in the case of (Gujrat Water and Sewerage Board v. Unique Trectors (Gujarat) Pvt. Ltd.)3, A.I.R. 1989 Supreme Court 973 para 16. The petitioner shall pay to the respondents the amounts payable under the Award as modified within four weeks from today. 13. Issue of certified copy of this judgment as well as the decree is expedited. Petition dismissed. *****