Tantia Construction Co. Ltd. v. Union of India — 1998 DIGILAW 19 (CAL)

JUDGMENT UMESH CHANDRA BANERJEE, J. 1. It is now a well-settled principle of law that by reason of an error or omission, be it factual or otherwise, on the part of the Law Court, a litigant public cannot and ought not to be allowed to suffer since the Law Court's primary consideration is to sub-serve the ends of justice and the law is well settled and as such we need not detain ourselves on that score. 2. The contextual facts depict that on 20th July, 1983 an award was made and published by the learned Arbitrator whereby the respondent was directed to pay to the appellant an amount of Rs. 24,47,080 in full and final settlement of the claim. The award provided further that in the event the sum was not paid to the appellant within 45 days from the date of the award, the awarded sum would carry interest at the rate of 9% per annum from the date of expiry of the aforesaid 45 days. 3. The records depict that subsequent to the award, an application made by the respondent herein for setting aside the award was dismissed by the learned Single Judge on 9th January, 1984 and consequently on 11th January, 1984 a decree was passed in terms of the award. The matter, however, was taken before the Appellate Court by the respondent against the order dated 9th January, 1984 (that is to say against the order of dismissal of the application for setting aside the award). Incidentally be it noted here that there was no appeal from the decree. Subsequently, the Appellate Court by an order dated 8th January, 1986 was pleased to remand the matter back to the learned Trial Judge for hearing of the setting aside application and on 27th July, 1988 by his judgment and order a learned Single Judge was pleased to dismiss the setting aside application on remand. It appears that on 4th October, 1988 the Advocate for the appellant intimated the General Manager of the respondent calling upon him to pay the sum awarded along with interest in terms of the decree dated 11th January, 1984. On 12th October, 1988 the records depict, a learned Single Judge of this Court was pleased to pass another decree in terms of the award dated 29th July, 1983 and awarded interest @ 9% per annum together with an order for costs. On 12th October, 1988 the records depict, a learned Single Judge of this Court was pleased to pass another decree in terms of the award dated 29th July, 1983 and awarded interest @ 9% per annum together with an order for costs. The contextual facts reveal that on 31st October, 1988 the respondent did write a letter to the decree-holder stating that the order and judgment of the High Court dated 27th July, 1988 stand accepted and the respondent had decided to comply with the order and to make payment of the awarded sum of Rs. 24,47,080. The appellant was requested to collect payment of the said sum and sign no claim certificate. Be it noted that while no claim certificate was furnished by the appellant in a Form as prepared by the appellant on 2nd December, 1988 a letter was sent to the respondent on 1st December, 1988 recording therein that the no claim certificate was being signed for the principal sum award in terms of the award less Income Tax and the certificate does not include or cover interest on the awarded sum in terms of the award which shall be payable by the Railways as decreed by the Court. 4. Incidentally, be it noted that in terms of the practice of the Original Side of this Court necessary requisition for drawing up of the decree dated 12th October, 1988 was filed before the department, but the department refused to draw up and complete the decree dated 12th October, 1988 by reason of existence of another decree dated 11th January, 1984 pertaining to the self-same award and more so by reason of the fact that the decree dated 11th January, 1984 had already been drawn up and completed and the same being still in force, question of having a second decree in the matter did not arise and as such there was total refusal on the part of the department to draw up and complete the decree dated 12th October, 1988. Confused on this problem the appellant mentioned the matter before the learned Trial Judge and the learned Trial Judge thereafter recalled the decree dated 12th October, 1988 and directed that the decree dated 11th January, 1984 would continue to remain operative. 5. Confused on this problem the appellant mentioned the matter before the learned Trial Judge and the learned Trial Judge thereafter recalled the decree dated 12th October, 1988 and directed that the decree dated 11th January, 1984 would continue to remain operative. 5. The facts further disclose that the appellant did, as noted above, sign on the dotted line of the no-claim certificate and shortly thereafter by the end of December, 1988 the appellant demanded payment of sum of Rs. 11,82,102 on account of interest in terms of the decree dated 11th January, 1984. Subsequently an application was made on behalf of the appellant for execution of the decree dated 11th January, 1984. The said application was, however, allowed on 27th February, 1990 and on an appeal preferred by the respondent the Appellate Court was pleased to remand the matter back to the learned Trial Judge directing trial on evidence on the question of the settlement and as to whether the Appellate Court's order dated 1st December, 1988 can be sustained in the contextual facts. The learned Single Judge by an order dated 10th March, 1992, however, was pleased to dismiss the application for execution. At the instance of the present appellant the appeal was filed and the Appellate Court by a judgment and order dated 29th April, 1994 was pleased to remand the matter back to the learned Trial Judge and on 22nd August, 1994 the execution application was again dismissed by the learned Single Judge and this appeal is directed against such an order of dismissal of the execution application. 6. The learned Single Judge while dealing with the matter as regards the issue of two decrees dated 11th January, 1984 and 12th October, 1988 did record the following:- "In this case the judgment was pronounced in terms of an award. When the judgment was pronounced the award was not under challenge. The judgment when pronounced was therefore proper. The challenge to the award was revived by the Appeal Court which specifically directed that the application challenging the award would be treated as pending. The judgment and decree passed by P. Bonnerjea, J. could therefore no longer be sustained as the entire issue was re-opened and the proceedings reverted back to the third stage mentioned above. The challenge to the award was revived by the Appeal Court which specifically directed that the application challenging the award would be treated as pending. The judgment and decree passed by P. Bonnerjea, J. could therefore no longer be sustained as the entire issue was re-opened and the proceedings reverted back to the third stage mentioned above. There may not have been a specific order of the Appellate Court setting aside the decree but that is implicit not only in the fact that the appeal was allowed from the order refusing to set aside the award but also from the language of the Appellate Court in disposing of the appeal by directing the application to be treated as pending. The petitioner's submission that in the absence of a specific direction setting aside the decree, the decree continued to remain operative is contrary to the statutory scheme of the Act. The fate of the decree passed by Bonnerjea, J. could not be kept in suspended animation as it were. The only decree that could be kept in suspended animation as it were. The only decree that could be passed in the matter would be one subsequent to the rejection of the application challenging the award. In this case that decree would be the decree passed by A.K. Sengupta, J. The decree is passed on the judgment. The judgment which is pronounced in terms of the award does not require any separate reasoning to be given by the Court pronouncing the judgment, as to the reliefs claimed. The judgment has no existence apart from the award. The language of the section 17 would show that the judgment must be strictly in terms of the award. As long as the status of the award is precarious or i.e. subject to challenge there cannot be a judgment in terms of the award far less a decree. The dependance of the judgment on the order rejecting an application for setting aside the award is clear from the limited nature of the appeal which can be preferred from the decree under section 17 of the Act. The appeal is restricted only to the question whether the judgment is in excess or not in conformity with the award. Plainly said no judgment nor decree can exist in respect of an award under challenge. A judgment and decree under section 17 must be sustained by an unchallenged award. The appeal is restricted only to the question whether the judgment is in excess or not in conformity with the award. Plainly said no judgment nor decree can exist in respect of an award under challenge. A judgment and decree under section 17 must be sustained by an unchallenged award. The confusion appears to have been created by the department drawing up the decree dated 11.1.1984. But the departmental procedure cannot determine the law. If the decree had ceased to exist as a matter of law the drawing up of the decree would not have the effect of keeping it alive. The petitioner has then argued that A.K. Sengupta, J. had by his order dated 1st December, 1988 specifically declared the decree dated 11.1.1984 as continuing to be operative. It is said that no appeal had been preferred by the respondent from this order and thus it was therefore, not open to the respondent to raise this issue. This argument is not tenable. The order dated 1st December, 1988 was obtained ex parte and the Court was not given the benefit of the argument of the respondent. For the reasons stated, I have already held that the decree dated 11.1.1984 ceased to exist immediately the Appeal Court revived the application under sections 30 and 33. But the order dated 1.12.1988 nothing new was added to the decree. A.K. Sengupta, J. made a declaration on 1.12.1988 that the decree dated 11.1.1984 continued to be operative. The decree dated 11.1.1984 did not become operative by reason of the order dated 1.12.1988. It is not clear under what provision of law such a declaration was made. In my opinion, the only course open to the Court at that stage after rejection of the application challenging the award was to pronounce a decree in terms of the award. No statutory provision nor any authority has been cited by the petitioner which enabled the Court to pass a declaratory order as it did. However, the executing Court has power under section 47 to determine all the issues as to the effect of the 11.1.1984 decree and in exercise of such power as the executing Court I hold the first issue in favour of the respondent that the decree that dated 11.1.1984 having become nonexistent cannot be executed." 7. However, the executing Court has power under section 47 to determine all the issues as to the effect of the 11.1.1984 decree and in exercise of such power as the executing Court I hold the first issue in favour of the respondent that the decree that dated 11.1.1984 having become nonexistent cannot be executed." 7. The above narration though longish in nature has had to be incorporated so as to appreciate the observations and findings of the learned Trial Judge. The peculiarity of the situation however, prompts us to record our observations in a manner different to that of the learned Trial Judge. There is no denial of the fact that, in fact, there was a decree dated 11th January, 1984 and the same was subsequently drawn up and completed in terms of the Rules of this Court-It is true that there exists certain amount of dependance of the decree on the application for setting aside the award, but that does not mean and imply that there was a total extinguishment of the decree by reason of dismissal of an application for setting aside the award. The decree by itself does not come to an end neither it can be said to be a non-existing one-The Court has had to pronounce a decree, it is a pronouncement subsequent to the dismissal of the application for setting aside without which there would not be a decree capable of execution and since the Court at a stage subsequent to the order of dismissal passes an independent order. There is an independent application of mind so far as the Court is concerned and the order cannot but be ascribed or be treated as an independent one. The order stands as it is and independently of the order on the setting aside application. In our view, it cannot be said that there is an automatic extinguishment of the decree by reason of the Appellate Court's order in the setting aside application. The analogy of the learned Trial Judge, in any event, could have had its sustenance in the event of there had been an order at any stage of the proceeding even indicative of setting aside the decree. At no stage of proceeding, there was such an order but the order passed in the matter is that of remittance of the application for setting aside the award before the learned Trial Judge. At no stage of proceeding, there was such an order but the order passed in the matter is that of remittance of the application for setting aside the award before the learned Trial Judge. There cannot possibly be automatic evaporation of the decree passed in the matter. As noted above decree is a process of the Court and comes into an existence by reason of the specific order of the Court. It has an independent existence and statute recognises such a stage in terms of the provision of section 17 of the Act. Section 17 provides:- "17. Judgment in terms of the award – Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceeded to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with award." 8. The pre-condition therefore in terms of section 17 is that if the Court sees no cause to remit the award for reconsideration or to set aside the award, the Court is to pronounce the judgment according to the award, provided of course the time has expired for making an application to set aside the award. Admittedly time has expired and there has been no such stay of operation of the decree passed at any stage or even any order of stay of further proceeding, in the absence of which and in the event the Court passes an order pronouncing a judgment and a decree follows by reason therefore. The decree at best can be said to remain suspended until the finality is reached in the application for setting aside the award. It does not cease to exist, nor the same stands nullified. In our view, question of declaration of the decree to be nullity or non-est does not and cannot arise. The decree exists and it does not perish automatically since the same is an independent order of the Court and unless set aside continues to remain in force. It does not cease to exist, nor the same stands nullified. In our view, question of declaration of the decree to be nullity or non-est does not and cannot arise. The decree exists and it does not perish automatically since the same is an independent order of the Court and unless set aside continues to remain in force. It is true that a decree is passed in respect of an unchallenged award as has been observed by the learned Trial Judge and in our view, no exception can be taken but in the facts of the matter under consideration there is, in fact, a decree which has not been challenged at any point of time and the Trial Court being an executing Court cannot in any event go behind the decree more so by reason of the fact that the proceeding before the learned Trial Court is in execution of the decree and not an application under section 47 of the Code of Civil Procedure. 9. There is no manner of doubt that till the statutory period expires, after the rejection of the application for setting aside the award, question of there being a decree being pronounced in terms of the award does not and cannot arise. The learned Judge coined it as the award being in a precarious stage-there cannot possibly be any exception to the same. Section 17, in no uncertain terms, evinces a desire of the legislature that the judgment shall have to be in terms of the award and in the normal course of event the Act provides that in the event of filing of an award and in the event of expiry of the statutory period and in the event further in the absence of application for setting aside the same, the Court shall pass a decree in terms of the order. (Emphasis supplied). In the contextual facts, in fact, a decree has been passed in conformity with the provisions of law and no exception can be taken. It is only at the stage subsequent, a confusion arises since the Appellate Court remits the application for setting aside, for further hearing before the learned Single Judge. Appellate Court's order as regards intervening event of the decree is totally silent. It is only at the stage subsequent, a confusion arises since the Appellate Court remits the application for setting aside, for further hearing before the learned Single Judge. Appellate Court's order as regards intervening event of the decree is totally silent. It is on this score that the learned Trial Judge observed that by implication it would be deemed that the decree would also be treated as not passed. Unfortunately and with due respect to the learned Judge we are not in a position to record our concurrence to such an observation of the learned Trial Judge. In terms of the Rules of this Court the decree has subsequently been drawn up and completed and the records depict the same without any fear of contradiction. It is by reason of this completion of the decree the registry officials raised an objection to the effect that there cannot possibly be two decrees after the passing of the decree by A.K. Sengupta, J. The learned Trial Judge, as noted earlier, recorded that confusion has been created by the department by drawing up the decree dated 11th January, 1984 and the learned Trial Judge went on to observe. But the departmental procedure cannot determine the law. If the decree had ceased to exist as a matter of law the drawing up of the decree would not have the effect of keeping it alive. It is on this score if we may say that the learned Trial Judge has fallen to error. The drawing up of the decree has already taken place and it is only at a stage subsequent that the department raised an objection as to the drawing up of a second decree. It is not the first decree of which there is any confusion, but it is the drawing up of the second decree which has promoted the department to refuse by reason of the existence of another decree. There is no question of the decree being kept alive by the drawing up of the decree dated 11th January, 1984. Procedural law may be technical but in our view cannot be given a go-bye altogether or absolutely, more so in the event of there being a finding of the learned Trial Judge herself that if any decree is to be executed that would be the Second decree and not the earlier decree. Procedural law may be technical but in our view cannot be given a go-bye altogether or absolutely, more so in the event of there being a finding of the learned Trial Judge herself that if any decree is to be executed that would be the Second decree and not the earlier decree. The second decree has been recalled by Sengupta, J. subsequently by reason of the objection of the department in drawing up the second decree. So the factual situation in short, if the observation of the learned Trial Judge has to be taken recourse to, is as follows:- "A decree passed in terms of provisions of the Act. A second decree passed. The first decree ceased to exist by reason of a legal fiction. The second decree stand withdrawn or recalled by the learned Judge passing the decree. Execution application on the basis of the first decree must fail." 10. Can this factual situation be said to be in consonance with the concept of justice–It is not that the learned Judge says that the decree-holder is not entitled to execute a decree: What the learned Judge observed is that the second decree is executable but since it has been recalled it ceases to be operative. The first decree is declared to be nullity the second decree ceases to be operative by reason of the specific order of the Court. Then what would happen to the decree-holder. Is it a fair way of dealing with the matter? Admittedly there is an award in favour of the appellant herein. Technicality dehors and in the normal course he would have been able to reap the fruits of his award. But by reason of procedural defects assuming there be any, the Court finds his right to obtain his relief an impossibility-This, however, cannot be the due process of law. Law Court exists not to make a mockery of law but to give effect to the due process of law, so that justice is meted out to a concerned party seeking a judicial redress. Technicality alone cannot possibly out-weigh the course of justice and it is the concept of justice which ought and is the predominant factor in so far as the Law Court is concerned. 11. The other aspect of the matter is in regard to the order of the Appellate Court dated 28th August, 1990. Technicality alone cannot possibly out-weigh the course of justice and it is the concept of justice which ought and is the predominant factor in so far as the Law Court is concerned. 11. The other aspect of the matter is in regard to the order of the Appellate Court dated 28th August, 1990. The Appellate Court in no uncertain terms passed an order in the manner following:- "In our opinion, two questions of fact and law are involved. Had it been only the question of law, we could have decided the same by ourselves. But if question of fact is also involved then it is another thing. In our opinion, the learned Judge should not have disposed of the matter before him on affidavits only, but he should have directed a trial on evidence, and we direct accordingly. We are of the opinion that all the points involved, whether on fact or law, should be gone into by the Trial Court at the first instance and we do not express our opinion regarding the same. Accordingly, we allow this appeal. The order passed in execution is hereby set aside. The execution application shall be treated to be pending. All questions involved in this application including the question whether such a decree could be executed in this application and the question of the alleged settlement, as sought to be set up by the Union of India, are to be gone into by the executing Court. Let it be recorded that we have not gone into the merits of any point either of law or of fact. Let it be recorded that one of the points raised in opposing this appeal was that no proper step had been taken by the Union of India for entering satisfaction as required under the Code of Civil Procedure. Let it also be recorded that the parties have no objection to this order being passed. So far as the order of attachment is concerned, this will be continued until further orders of the executing court or until disposal of the application whichever is earlier. This appeal is disposed of accordingly. There will be no order as to costs. Interim Order, if any, is vacated." 12. There is therefore a definite direction, as to the method and manner to be followed by the learned Trial Judge while deciding the issue. This appeal is disposed of accordingly. There will be no order as to costs. Interim Order, if any, is vacated." 12. There is therefore a definite direction, as to the method and manner to be followed by the learned Trial Judge while deciding the issue. But the learned Trial Judge, with due respect, however thought it prudent to deal with the matter in a manner contrary to the direction contained in the order of the Appellate Court. The learned Judge has been pleased to record:- "Having heard the submissions of the parties it appears to this Court that the issues framed above may be resolved without the necessity of considering any evidence at all. The first question is dependent upon the scheme of the Act and the construction section 17 of the Arbitration Act, 1940." 13. There is therefore undoubtedly a departure from direction of the Appellate Court. The evidence already taken has not been considered by the learned Trial Judge. Be it placed on record that the matter was dealt with by another learned Single Judge (P. Khastagir, J.) on 10th March, 1992 wherein evidence was taken and the learned Judge on 10th March, 1992 held that the decree dated 11th January, 1984 was non-est. But the order of Khastagir, J. was not sustained by the Appellate Court since the same was ex parte in nature and the matter was again remitted back to the learned Trial Judge and upon hearing the submissions the learned Trial Judge passed the order as noticed earlier and hence the present appeal. The direction of the appellate Court, however, remained and the observation of the learned Trial Judge with due respect that there may not be any necessity of considering any evidence at all, in our view, cannot be said to be a proper appreciation of the order of the Appellate Court. 14. On the basis as above in the normal course of events judicial propriety demanded probably to remit the matter back to the learned Judge for being dealt with in terms of the direction of the Appellate Court but again the concept of justice pre-dominates since further delay would defeat the concept of justice. 14. On the basis as above in the normal course of events judicial propriety demanded probably to remit the matter back to the learned Judge for being dealt with in terms of the direction of the Appellate Court but again the concept of justice pre-dominates since further delay would defeat the concept of justice. Matter is pending since the order of 1983 when the learned Arbitrator has passed the award in favour of the appellant herein and the appellant has not been able to take any advantage of the award even after the expiry of the 14 years-A state of affairs which shocks our judicial conscience, law is delay well-known in the sub-continent but the normality of delay which has occasioned already and further delay would mean and imply a travesty of justice. 15. As regards the issue in regard to the bar of further claim by reason of an acceptance of a sum of Rs. 24,47,080 in full and final settlement of the claim, Mr. Basu has been very emphatic to the effect that the laws stand crystal clear in regard to such a state of affairs. Mr. Basu contended that shortly after the decree as passed by A.K. Sengupta, J., the respondent, Union of India, did write a letter dated 30th October, 1988 to the following effect:- "In pursuance to the order passed by the Hon'ble High Court Calcutta on 27.7.1988 in the above matter dismissing the Railway's Application for setting aside the Award dated 29.7.1988 made and published by the Sole Arbitrator, Brig. M.K. Basu (Retd.), the President of India acting through the S.E. Railway Administration has decided to comply with the Hon'ble nigh Court's order dated 27.7.1988 and make payment of the awarded sum of Rs. 24,47,080/- (Rupees twenty four lakhs fourty seven thousand and eighty only) to you. 2. Please therefore deputed your authorised representative, viz., the Managing Director of your Company, to attend this office immediately to furnish the Full Satisfaction Receipt for the Award amount & No Claim Certificate and receive the payment in satisfaction of the Award." Be it noted that Sengupta, J. was pleased to pass a decree on 12th October, 1988 in terms of the award dated 29th July, 1983 along with interest at the rate of 9% per annum and costs which was assessed by the learned Judge at Rs. 5001/-. 16. 5001/-. 16. The letter as noted above in no uncertain terms recorded that South Eastern Railway Administration has decided to comply with the High Court's order dated 27th July, 1988. This particular order pertains to the dismissal of the application under sections 30 and 33 of the Arbitration Act for setting aside the award. A brief recapitulation of the facts already noted, however, would be some of assistance at this juncture. The facts reveal that the award was made and published on 29th July, 1983 by the Sole Arbitrator. The Arbitrator directed payment to M/s. Tantia Construction Company Pvt. Ltd. being the predecessor-in-interest of the present appellant an amount of Rs. 24,47,080 in full and final settlement of all the claims and disputes which were referred to him. The award further directed that if the above sum was not paid to M/s. Tantia Construction Co. Pvt. Ltd within 45 days from the date of the award the awarded sum would carry interest at the rate of 9% per annum from the date of expiry of the aforesaid 45 days. The Union of India, the records depict, filed an application subsequently for setting aside the award which was dismissed by Mrs. Pratibha Bonnerjee, J. on 9th January, 1984. Subsequently the learned Judge was pleased to pass a decree on 11th January, 1984 in terms of the award. 17. As noted earlier the acceptance of the order of the High Court dated 27th July, 1988 relates to the dismissal of the setting aside application which in turn mean and imply that the sum awarded in terms of the award would be paid. The award itself contains clause for payment for interest after the expiry of 45 days. If there is acceptance of the award then and in that event by reason of the expiry of the period of 45 days there is an entitlement for interest, but the letter fixes it up the principal sum only and not the interest. The payment, admittedly, has been received but in this context the letter dated 1st December, 1988 from Tantia Construction is of some consequence and as such the same is set out in extenso herein below:- "TANTIA CONSTRUCTION COMPANY LIMITED Camp at Viskhapatnam 1st December, 1988 To Dy. The payment, admittedly, has been received but in this context the letter dated 1st December, 1988 from Tantia Construction is of some consequence and as such the same is set out in extenso herein below:- "TANTIA CONSTRUCTION COMPANY LIMITED Camp at Viskhapatnam 1st December, 1988 To Dy. Chief Engineer (Con.), South Eastern Railway Visakhapatnam-530 004 Sub: Payment arising out of Award Case No 167 of 1983 in the Hon'ble High Court at Calcutta Agreement No. DCE/BC/29/75 dated 14.4.1975. Ref: Your letter No. ARB/BC/WAT/29/1/5425 dated 31.10.1988 and subsequent communications. Dear Sir, In response to your letter under reference the undersigned has attended your office to collect the cheque for the awarded sum of Rs. 24,47,680/- as mentioned in your letter. It is given to understand that a certificate called Full satisfaction receipt for the Award amount and no claim certificates as prepared by you is required to be signed to receive the cheque. The undersigned is signing the said certificate does not include/cover interest on the awarded sum in terms of the award, which shall be payable by the Railways as decreed by Court. Please acknowledge receipt. Thanking you. Yours faithfully for TANTIA CONSTRUCTION CO. LTD. Sd/- I.P. Tantia DIRECTOR C.C. – The General Manager South Eastern Railway Garden Reach Calcutta-43." 18. It is in this context Mr. Basu contended that question of there being a further amount being due and payable to the Contractor does not and cannot arise. Strong reliance was placed on the decision of the Supreme Court in the case of State of Maharashtra vs. Nav Bharat Builders, (1994) Supp (3) SCC 83. The Supreme Court upon following the decision of P.K. Ramaiah & Co. vs. Chairman and Managing Directors, (1994) 1 Scale 1 , observed that the respondent contractor having acknowledged the receipt of the amount paid to him and stated that there was unconditional withdrawal of his claim in the suit in respect of labour escalation, there cannot be any manner of doubt that there was thus full and final settlement of the claim and thereby there was no arbitrable dispute in respect of labour excalation. Mr. Basu also placed reliance on another decision of the Supreme Court in the case of Nathani Steels Ltd. vs. Associated Constructions, (1995) Supp (3) SCC 324. In the last noted decision the Supreme Court in paragraph 3 of the Report observed:- "3. Mr. Basu also placed reliance on another decision of the Supreme Court in the case of Nathani Steels Ltd. vs. Associated Constructions, (1995) Supp (3) SCC 324. In the last noted decision the Supreme Court in paragraph 3 of the Report observed:- "3. The appellant has invited out attention to two decisions of this Court. The first dated 1.10.1993 in P.K. Ramaiah & Co. vs. Chairman and Managing Director, National Thermal Power Corp. and second, dated 4.2.1994 in State of Maharashtra vs. Nav Bharat Builders. In the first mentioned case the parties had resolved their disputes and differences by a settlement pursuant whereto the payment was agreed and accepted in full and final settlement of the contract. Thereafter, brushing aside that settlement the Arbitration clause was sought to be invoked and this Court held that under the said clause certain matters mentioned therein could be settled through Arbitration but once those were settled amicably by and between the parties and there was full and final payment as per the settlement, there existed no arbitrable dispute whatsoever and, therefore, it was not open to invoke the Arbitration clause. In the second mentioned case the respondent-Contractor acknowledged the receipt of the amount paid to him and stated that there was unconditional withdrawal of his claim in the suit in respect of the labour escalation. There was, thus, full an final settlement of the claim and it was contended that no arbitrable dispute survived in relation thereto. Other claims, if any, and which were not settled by and between the parties could be raised and it would be open to consider whether the arbitrable dispute arose under the contract necessitating reference to arbitration. There was, thus, full an final settlement of the claim and it was contended that no arbitrable dispute survived in relation thereto. Other claims, if any, and which were not settled by and between the parties could be raised and it would be open to consider whether the arbitrable dispute arose under the contract necessitating reference to arbitration. Dealing with this question also this Court after referring to the decision in P.K. Ramaiah case concluded that in relation to the claim under the head labour escalation there did not remain any arbitrable dispute which could be referred to arbitration It would thus be seen that once there is a full and final settlement in respect of any particular dispute or difference in relation to a matter covered under the Arbitration clause in the contract and that dispute or difference is finally settled by and between the parties, such a dispute or difference does not remain to be an arbitrable dispute and the Arbitration clause cannot be invoked even though for certain other matters, the contract may be in subsistence. Learned counsel for the respondent, however, placed great emphasis on an earlier decision of this Court in Damodar Valley Corporation vs. K.K. Kar, and in particular to the observations made in paras 11 to 13 of the judgment. It may, at the outset, be pointed out that a similar argument was advanced based on the observations made in this decisions in Ramaiah case also (vide para 7) but the same was rejected holding that on the facts since the respondent did not give any receipt accepting the settlement of the claim, the payment made by the other side was only unilateral and hence the dispute subsisted and the Arbitration clause in the contract could be invoked. Therefore, that decision can be distinguished on facts. Even otherwise we feel that once the parties have arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or the difference is amicably settled by way of a final settlement by and between the parties, unless that settlement is set aside in proper proceedings, it cannot lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and proceed to invoke the Arbitration clause. If this is permitted the sanctity of contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then to question the same on the ground of mistake without having the settlement set aside. In the circumstances, we think that in the instant case since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non-est and proceed to invoke the Arbitration clause. We are, therefore, of the opinion that the High Court was wrong in the views that it took." 19. While it is true that final acceptance of amount of the bill cannot possibly be said to have any further claim so as to refer to the same to the arbitration but the contextual facts depict otherwise. There was no claim for an arbitrable dispute as noted earlier. It is a claim for interest awarded by the Arbitrator which stands confirmed by the decree of the Court. The receipt of the money and the letter as noted above were effected on the same day. Obviously, a simultaneous event. It is not that something further is to be adjudicated but the adjudication in the matter has already taken place and as such the decisions cited by Mr. Basu in support of his contention that the appellant is otherwise estopped from claiming any further sum on the basis of the decision of the Supreme Court, does not, however, stand to reason. The Supreme Court decisions are clearly distinguishable on facts and in our view, does not lent any assistance to Mr. Basu appearing for the respondents. 20. Judicial ethics also would not permit us to put an end to such a claim more so by reason of the facts that there is a pronouncement by the chosen Arbitrator of the parties and subsequent acceptance of the same in the Court in the form of a decree not once but twice, last of which, however, stands recalled. If interest is payable then there is no reason whatsoever as to why loosing the battle, one of the parties would decry or refuse to make payment of such interest. Question of there being an estoppel in the contextual facts does not and cannot arise. If interest is payable then there is no reason whatsoever as to why loosing the battle, one of the parties would decry or refuse to make payment of such interest. Question of there being an estoppel in the contextual facts does not and cannot arise. A legitimate claim for interest has to be paid and there is no escape from that. The letter dated 1st December, 1988, in no uncertain terms, records that the acceptance of the cheque is without the claim for interest. In any event governmental action being always supposedly fair and proper cannot possibly limit the claim of principal only when, in fact, there is an award for interest as well. It is a commercial venture and the Government must act in such a venture with proper spirit. The decision to pay the principal amount was only unilateral and if it is accepted with a protest, question of waiver of interest does not and cannot arise. In that perspective also submission of Mr. Basu fails and since we are unable to record our concurrence therewith. 21. The appeal therefore succeeds. The order of the learned Trial Judge is set aside. There shall however be no order as to costs. Appeal allowed. I agree.