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1994 DIGILAW 381 (CAL)

KUMAR v. K. SINHA ROY VS UNION OF INDIA

1994-12-21

BIJITENDRA MOHAN MITRA, S.K.MUKHERJEE

body1994
S. K. MOOKHERJEE, J. ( 1 ) THIS Revisional application is directed against Order No. 3, dated 24th January, 1990 passed by the learned Arbitrator, 24 Parganas (N and S) and Calcutta in Ern. Case No. l of 1990 [arbitration Case No. 64/66 (V)] whereby the learned Arbitrator passed certain directions regarding charging of interest on the amounts of the award, which was being executed. The directions of the learned Arbitrator, inter alia, provided that on the mount of the award of Rs. 41,873. 85, interest at 5% p. a. with effect from 19. 12. 46 to 23. 5. 56 (9 years 56 days) and from 5. 8. 67 to 29. 7. 75 will be Rs. 19,738. 05 and 16,703. 58 respectively and, accordingly the learned Arbitrator found necessity of amendment of the application for execution as also for filing of certified copy of the original award and the certified copy of the judgement and decree in Appeal No. 536 of 1975 before the Hon'ble High Court. ( 2 ) THOUGH very detailed augments have been made before us witty reference to the previous history of the case, culminating with the instant revisional application, in view of the nature of contentions, which we are invited to adjudicate, the same become unnecessary for us to go into in entirety. We, therefore, propose to deal with the such contentions with as much brevity as possible as may be relevant for the disposal of the present Revision. ( 3 ) ADMITTEDLY, in terms of an Order, passed by the Division Bench, at an interlocutory stage, in connection with first Appeal, which had been heard out by this Court, the appellant, respondent/opposite party herein, had to deposit the decretal dues for obtaining an ad interim relief with regard to the operation of the award, dated 20th January, 1975, impugned in the said First Appeal, and such deposit was made on 29th July, 1975. That part of the deposited amount, which was undisputed, was permitted to be withdrawn by the present appellant and others without furnishing any security and, actually, the withdrawal was made on or about 17th March, 1976 ; out of the remaining disputed part of the deposited amount, the withdrawal was permitted, by the Division Bench, on furnishing of Bank guarantee for the same and in compliance with the said condition, the disputed amount had been withdrawn, on 17th/18th March, 1976, on furnishing Bank guarantee. The appeal itself stood dismissed on 12th October, 1988 till which date the Bank guarantee had been kept alive. The learned Arbitrator, for the reason recorded in the impugned Order, refused to allow interest after 29th of July, 1975, on which date the deposit of the amount of award had been made in terms of direction by the Division Bench and propriety of such reasoning has been assailed by both the parties before us and constitutes the list of the instant revisional application. ( 4 ) A number of decisions had been cited at the Bar in support of the respective contention but we propose, in view of the scope of adjudication by us, to refer to only those decisions, which do have application to and bearing in the facts of the present case and the dispute in question. ( 5 ) IN view of the principle laid down in the case of C. G. Ghanashamdas v. Collector of Madras, reported in AIR 1987 SC 180 , following AIR 1971. S. C. 1887, the award/order of the Arbitrator, under Section 8 of the Requisitioning Act, can be said to be formal expression of a decision made by a competent authority binding on the parties to the proceeding in which it is made and is substantially similar to an order within the meaning of Section 2 (14) of the Code of Civil Procedure. Such order being must be held to be enforceable through execution. In the instant case there is a further fact that the order ultimately merged in the appellate order, which was put into execution. Such order being must be held to be enforceable through execution. In the instant case there is a further fact that the order ultimately merged in the appellate order, which was put into execution. The Division Bench decision of this Court in the case of Tarapada v. Harekrishna, reported in AIR 1957, Calcutta 335, held that provision of Section 36 of the Code of Civil Procedure rendered the provisions of the Code relating to the execution of the decree (including provisions relating to payment under a decree) applicable to execution of such types of Order and, therefore, in the instant case there can be no doubt about the applicability of the provisions of Order 21 of the Code of Civil Procedure. Any other construction would result in making the binding effect such order an illusion. The Supreme Court again in the case of P. S. L. Ramanathan Chettiar v. R. M. P. R. M. Ramanathan Chettiar, reported in AIR 1968 SC 1047 , has settled the position that on deposit, in Court of the decretal amount, in terms of an Order of Court, no title posses with regard to the deposited amount and as such cannot be said to have the effect of exempting the payment of interest by the Judgment Debtor on such deposit being made. In the instant case also the awardee could not withdraw the amount except on satisfaction of the conditions imposed by Court. The award, therefore, remained unsatisfied even after deposit by the judgment debtor and withdrawal by the awardee in terms of liberty granted by the Court of Appeal. ( 6 ) APPLYING the aforesaid principles, the reasoning given by the learned Arbitrator in the impugned decision for refusal of interest after deposit of money on 29th July, 1975, with regard to the disputed portion of the deposit, which had been withdrawn by the petitioner only on furnishing Bank guarantee is not justified or tenable. The impugned Order, therefore, deserves to be modified. We, therefore, direct that the awardee/petitioner will be entitled to interest on the disputed portion of the amount up to the date of disposal of the appeal, namely 12th October, 1988. The Rule is made absolute to that extent and the impugned Order is also set aside in part to that extent. There will be no Order as to costs. B. M. Mitra, J. I agree. Order accordingly.