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1999 DIGILAW 411 (ORI)

PRASANNA KUMAR ROUTRAY v. STATE OF ORISSA

1999-11-19

P.K.MISRA

body1999
P. K. MISRA, J. ( 1 ) THE claimant has filed this appeal under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as the "act" ). ( 2 ) THE appellant had executed the work of Excavation from R/d 49. 265 KM to 50. 525 km to Tamasa Main Canal (TMC in the district of Malkanagiri. as per Agreement No. 38-F2 of 1980-81. Though the work was completed in June, 1985, the final bill was prepared in the year 1987. Since there was some dispute relating to the amount payable, the appellant had filed several representations before the respondent and ultimately had to file claim application before the Arbitration Tribunal constituted under Section 41-A of the Act, as amended in Orissa, on 11. 3. 1993 claiming a sum of Rs. 85,153. 12 paise along with twelve per cent interest from the due date till the date of payment. The State in its objection resisted the claim filed before the Arbitration Tribunal and on the other hand claimed that certain recoveries are to be made from the Contractor. ( 3 ) THE Arbitration Tribunal after hearing the parties held that the Contractor was entitled to a total sum of Rs. 70. 933/ -. It further held that the Contractor is entitled to interest on the awarded amount from the date of the claim application till payment. However, the tribunal negatived the prayer of the contractor for payment of interest for the period from the date of completion of the work till the date of filing of the claim application, that is to say, interest for the pre-reference period. ( 4 ) THE aforesaid award was submitted by the Tribunal to the Civil Judge (Senior Division)to make a rule of the Court. The said proceeding was numbered as O. S. No. 449 of 1996. The claimant filed Misc. Case No. 142 of 1997 to set aside the award mainly on two grounds. The Contractor challenged the finding of the tribunal regarding deduction of Rs. 14,160/ -. He also challenged the finding of the Tribunal regarding not granting of interest for the period prior to the date of the application. The suit and the Misc. Case were taken up together and disposed of by a common judgment by the civil Judge (Senior Division), Bhubaneswar. Both the contentions of the appellant were negatived and the award was confirmed. He also challenged the finding of the Tribunal regarding not granting of interest for the period prior to the date of the application. The suit and the Misc. Case were taken up together and disposed of by a common judgment by the civil Judge (Senior Division), Bhubaneswar. Both the contentions of the appellant were negatived and the award was confirmed. It was directed specifically that the State should pay the awarded amount of Rs. 70,993/- with twelve per cent interest from the date of the claim application till the date of payment. The aforesaid decision of the Civil Judge is under challenge in the present appeal. ( 5 ) LEARNED Counsel for the appellant has reiterated the contentions which had been raised before the Civil Judge. It is first contended that the direction of the Tribunal regarding deduction of Rs. 14,160/- from the dues of the claimant is unjustified as the State Government had already deducted a sum of Rs. 19,762. 93 paise. ( 6 ) UNDER Section 41-A of the Arbitration act, the Tribunal will decide the arbitration case and is required to give reasons. In the present case, the Tribunal has considered the claim as well as the counter-claim of the State Government and after giving the reasons has directed for deduction of Rs. 14,160/ -. Law is well settled that even where the Arbitrator is required to give reasons, the Court is not constituted a court of appeal over the decision of the Arbitrator. Only where there is error on the face of the award, the Court can interfere with the award. In the decision reported in Gujarat water Supply and Sewerage Board v. Unique erectors Gujarat (P) Ltd. and Anr, it has been held :-". . . . . . EVEN in a case where the Arbitrator has to state reasons, the sufficiency of the reasons depends upon the facts and the circumstances of the case. The court, however, does not sit in appeal over the award and review the reasons. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusion or if the award is based upon any legal proposition which is erroneous. "it is unnecessarily to refer to other decisions of the Supreme Court expressing similar view. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusion or if the award is based upon any legal proposition which is erroneous. "it is unnecessarily to refer to other decisions of the Supreme Court expressing similar view. Keeping in view the aforesaid principle of law, it cannot be said that the award is based upon any legal proposition which is erroneous, nor it can be said that there is evidence to support the conclusion in the award regarding deduction of sum of Rs. 14,160/ -. It may be that any other Court or authority might have come to a different conclusion on the same set of evidence, but that by itself cannot be considered as a sufficient ground to interfere with the award. The first contention is. therefore, not tenable. ( 7 ) LEARNED Counsel for the appellant then submitted that the Tribunal committed an error of law and jurisdiction in not granting interest for the pre-reference period from June, 1985, till 11. 3. 1993. when the application before the tribunal was filed by the present appellant. From the decisions reported in Sudhir Brothers v. Del hi-Development Authority And anr. and State of U. P. v. Harish Chandra and co. it is now clear that in arbitration cases arising after the commencement of the Interest Act, 1978. the Arbitrator has power to grant interest for pre-reference period, that is to say, for a period anterior to the reference to the Arbitrator. In the present case, on filing of the application as per the provisions contained in the arbitration Tribunal Rules, the reference commenced before the Tribunal. The Tribunal has refused to grant any interest for the period prior to the date of application on the ground that the contractor did not file the claim application before the Tribunal soon after the dispute started and waited for a long period. In other words, the Tribunal though conscious of its jurisdiction to grant interest for the period prior to the date of reference, has refused to grant such interest by giving some reasons. Even though the Arbitrator has jurisdiction to grant interest for the pre-reference period, pendente lite or future, grant of such interest is within the discretion of the Arbitrator. In the present case, the Tribunal in its discretion refused to grant interest. Even though the Arbitrator has jurisdiction to grant interest for the pre-reference period, pendente lite or future, grant of such interest is within the discretion of the Arbitrator. In the present case, the Tribunal in its discretion refused to grant interest. The conclusion is not based on any erroneous assumption of law and being within the discretion of the Arbitrator, it cannot be said that the Tribunal committed any error apparent on the face of the award in refusing to grant interest by giving reasons for the period prior to the date of reference. It may be that any other Court might have granted interest on the self-same facts and circumstances, but that cannot be considered to be a sufficient reason to challenge the validity of the award. ( 8 ) THE learned Counsel for the appellant also submitted that in another claim case the very same Tribunal has granted interest for the period prior to the date of reference, i am afraid, such contention cannot be countenanced. Merely because the Tribunal has granted interest for a pre-reference period in another case and has refused to grant interest in the present case, it cannot be said that any misconduct has been committed, nor there is any error apparent on the face of the award. ( 9 ) FOR the aforesaid reasons. I do not find any merit in this appeal, which is accordingly dismissed. There will be no order as to costs. Appeal dismissed.