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2002 DIGILAW 791 (AP)

Executive Engineer, Panchayat Raj, Peddapuram v. P. Venkata Rao

2002-06-28

V.ESWARAIAH

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V. ESWARAIAH, J. ( 1 ) THESE two cases arise out of a common order dated 3rd July, 1998 in op Nos. 54 of 1992 and 67 of 1992 on the file of the Senior Civil Judge, Peddapuram among the same parties. Hence they are disposed of by a common order. ( 2 ) THE Executive Engineer, Panchayat raj Department filed CRP No. 3087 of 2000 against the order dated 3-7-1998 in OP No. 54 of 1992 on the file of the Senior Civil judge, Peddapuram in making the award dated 9-9-1992 as rule of Court. ( 3 ) THE CMA No. 2842 of 2000 is filed by the same Executive Engineer, Panchayat raj Department, against the order dated 3-7-1998 made in OP No. 67 of 1992 on the file of the senior civil Judge, Peddapuram, in dismissing the application filed by the petitioner herein under Section 30 of the arbitration Act to set aside the award dated 9-9-1992 passed by the arbitrator. ( 4 ) THE respondent herein is a contractor. The second respondent herein is the arbitrator, who is not a necessary party before this Court. An agreement dated 21-5-1985 was entered into between the parties for the construction of hostel building for residential school at A. Mallavaram village and the value of the work was rs. 6,52,176/- and the time stipulated for the completion of the work as 9 months from the date of handing over the site to the respondent-contractor. ( 5 ) AS there were certain disputes among the parties, the contractor raised certain disputes and filed OP No. 112 of 1990 before the Senior civil Judge, Peddapuram under Section 8 of the Arbitration Act for appointment of sole arbitrator, alleging that the work was completed and the amounts due to him were not paid, and that he is entitled to interest on such withheld amounts. The arbitrator was appointed by order dated 18-2-1992 and after considering the claims of the contractor and the counter claims of the Department, he gave the award dated 9-9-1992. As against the 7 claims of the contractor, the arbitrator allowed 6 claims and rejected claim No. 2 and the counter claim of the Department was also rejected. The arbitrator awarded an amount of rs. 81,076/- towards the wrongful withholding of bills and non-payment and directed refund of the deposit amount of Rs. 16,300/ -. As against the 7 claims of the contractor, the arbitrator allowed 6 claims and rejected claim No. 2 and the counter claim of the Department was also rejected. The arbitrator awarded an amount of rs. 81,076/- towards the wrongful withholding of bills and non-payment and directed refund of the deposit amount of Rs. 16,300/ -. He also awarded simple interest on rs. 97,376/- at the rate of 16 % per annum from 16-12-1987 till the date of award. An amount of Rs. 64,887/- towards the payment for extra work for RCC columns, and costs of Rs. 10,000/- were also awarded. ( 6 ) AGAINST the said award dated 9-9-1992 the contractor filed OP No. 54 of 1992 under Section 14 (2) and 17 of the arbitration Act to make the award the rule of Court before the senior civil Judge, peddapuram. The Department filed OP no. 67 of 1992 for setting aside the award under Section 30 of the Arbitration Act. Both the cases were disposed of by a common order dated 3-7-1998 by the learned senior civil Judge, Peddapuram. The Court while making the award the rule of the court also granted interest at the rate of 12% per annum on Rs. 1,62,263/- from the date of award till the date of payment. ( 7 ) AGAINST the order in OP No. 54 of 1992 CRP No. 3087 of 2000 and against the order in OP No. 67 of 1992 CMA No. 2842 of 2000 is filed. ( 8 ) THE learned Government Pleader appearing for the Department submits that the arbitrator mis-conducted himself in the proceedings and the award is a mala fide one and the Court below also committed an error in awarding the interest at the rate of 12% from the date of award till the date of payment and the Court has no power under Section 29 of the arbitration Act to grant interest prior to the date of decree and it got power to award reasonable interest from the date of decree alone till the date of payment. ( 9 ) INSOFAR as the award of the arbitrator is concerned I do not see any grounds to set aside the award as no grounds have been made out by the department that the arbitrator has misconducted himself in the proceedings and there are also no grounds to declare that the award is improperly procured or invalid. The civil Court rightly made the award the rule of Court and dismissed the op filed by the department to set aside the award. ( 10 ) THE learned Government Pleader appearing for the petitioner department submits that no doubt the arbitrator has got power to award interest till the date of award and also got the power to grant interest till the date of payment of the decree. But the arbitrator did not grant any interest subsequent to the date of award and therefore the civil Court erred in granting the interest from the date of award i. e. , for the prior period to the date of decree in OP No. 54 of 1992, dated 3-7-1998. The learned Government Pleader further submits that the award of interest by the Court below at the rate of 12% is illegal. As the Preserve Bank of India reduced the rate of interest on the FDRs at the rate of 9% only and the Hon ble Supreme Court of india also in his recent judgment held that hereinafter Courts should not grant the interest more than 9%. ( 11 ) THE question that arises for consideration in this case is only as to whether the judgment of the Court below in awarding interest from the date of award i. e. , 9-9-1992 at the rate of 12% per annum on the awarded amount of Rs. 1,62,263/- till the date of payment is in accordance with law. ( 12 ) THE Supreme Court in Union of india v. M/s. Jain Associates and another, 1994 (2) Scale 604 , held:"the first question that arises for consideration is whether the Court could award interest pendente lite. Section 29 of the Act says that in insofar as award is, for the payment of money, the Court may in the decree, order interest from the date of the decree at such a rate as it deems reasonable, to be paid on the principal sum adjudged by the award and confirmed by the decree. In Srikantia and Co. Section 29 of the Act says that in insofar as award is, for the payment of money, the Court may in the decree, order interest from the date of the decree at such a rate as it deems reasonable, to be paid on the principal sum adjudged by the award and confirmed by the decree. In Srikantia and Co. , v. Union of india, (AIR 1967 Bom. 354), it was held that Section 29 carries with it the negative import that it shall not be permissible to the Court to award interest on the principal sum adjudged in the award for a period prior to the date of the passing of the decree. The same principle was reiterated in ramshingh v. Ramsingh and another (AIR 1985 Rajasthan 148) Section 29 of the Act empowers the Court, that where the award is for payment of money, to grant reasonable rate of interest on the principal amount adjudged and confirmed in the decree, only from the date of the decree. Section 34 CPC empowers the Court, where there is a decree for payment of money to grant interest pendente lite and future, till the date of realisation. Since Section 29 of the Act enables the Court to grant interest on the principal amount adjudged in the award and confirmed in the decree only from the date of the decree, it carries a negative import with it that the Court has no power to grant interest pendente lite. The High Court, therefore, was not right in granting interest pendente lite, which the arbitrator himself had not granted. " ( 13 ) THUS a reading of the aforesaid judgment makes it clear that the Court has no power to grant interest pendente lite from the date of award of the arbitrator till the date of decree. But the Court is empowered under Section 29 of the arbitration Act to grant interest from the date of judgment and decree alone making the award as rule of Court. ( 14 ) THE question that arise in the case of Gujarat Water Supply and Sewerage board v. Unique Erectors (Gujarat) Private limited, AIR 1989 SC 973 , relating to the grant of interest from the date of award to the date of the Decree which was awarded by the arbitrator. ( 14 ) THE question that arise in the case of Gujarat Water Supply and Sewerage board v. Unique Erectors (Gujarat) Private limited, AIR 1989 SC 973 , relating to the grant of interest from the date of award to the date of the Decree which was awarded by the arbitrator. In those circumstances, the Apex Court held that the Arbitrator is empowered to grant of interest, after the interest Act, 1978 came into force. In the said case, the Arbitrator himself granted interest from the date of the award to the date of interest which has been upheld by the Apex Court. But that is not the case in the instant case. In the instant case, no interest has been awarded by the Arbitrator from the date of the Award to the date of the Decree. Therefore, the said case do not deal with the issue in question, with regard to power of the Court to grant interest from the date of the Award to the date of the decree which was not granted by the arbitrator. ( 15 ) THE learned Counsel appearing for the respondent submits that there cannot be any vacuum in the grant of interest and the Contractor is entitled for the interest on the awarded amounts. It is to be noticed that the respondent filed OP under sections 14 (2) and 17 of the Arbitration act, to make the Award as rule of the court. Admittedly, the Contractor has not questioned the Award under Sections 30 and 33 of the Arbitration Act to set aside the Award and to remit the Award to the Arbitrator for reconsideration with regard to the grant to interest from the date of the Award to the date of the decree. He has filed the OP to make the Rule of the Court. The Contractor cannot get the relief which has not been granted by the Arbitrator while making the Award as a Rule of the Court. The Court is empowered to make the Award as a Rule of the Court in terms of the award alone under Section 17 of the arbitration Act. The Contractor cannot get the relief which has not been granted by the Arbitrator while making the Award as a Rule of the Court. The Court is empowered to make the Award as a Rule of the Court in terms of the award alone under Section 17 of the arbitration Act. It is not in dispute that the arbitrator is empowered not only to award the interest for the pre-reference period, pendente lite before the Arbitration proceedings and also future interest from the date of the Award to the date of the decree, or till realization of the amount, whichever is earlier. ( 16 ) THE Constitutional Bench of the hon ble Supreme Court of India in Executive engineer DMI Division, Orissa v. N. C. Budharaj, AIR 2001 SC 626 , while dealing with the power of the arbitrator held that the arbitrator is empowered for awarding the interest pendente lite as well as for the post-Decree period under Section 34 of the Civil Procedure Code, though the said section may not apply. Section 29 of the arbitration Act empowers the Court for the payment of the awarded money along with interest from the date of the Decree at such rate as the Court deems reasonable to be paid on the principle as adjudged by the Award and confirmed by the Decree. The Arbitrator is empowered to grant interest for all periods prior to making the award as rule of Court and the power of the Court to grant interest under Section 29 of the arbitration Act, from the date of the Decree alone, but not prior period of the Decree. All the cases cited by the learned Counsel for the respondent deals with the power of the Arbitrator alone, granting interest till the date of the Decree. In the instant case, the Arbitrator, for whatever may be the reasons, no future interest is granted from the date of the Award, till the date of the decree or till realization of the amounts, and the said Award has not been questioned by the Contractor-respondent and therefore, the Court cannot grant interest prior to the date of the Decree. ( 17 ) THUS the Court below erred in awarding interest at the rate of 12% from the date of award till the date of judgment dated 3-9-1998. ( 17 ) THUS the Court below erred in awarding interest at the rate of 12% from the date of award till the date of judgment dated 3-9-1998. The interest on the awarded amount at the rate of 12% is also excessive as per the recent judgment of the Supreme Court of India and the award of interest at the rate of 9% on the award amount from the date of judgment i. e. , 3-7-1998 till the date of payment on the award amount of Rs. 1,62,263/- is just and reasonable. ( 18 ) ACCORDINGLY the judgment dated 3-7-1998 in OP No. 54 of 1992 is modified awarding interest at 9% p. a. , on Rs. 1,62,2631- from the date of judgment and decree i. e. , 3-7-1998 till the date of payment and the order of the Civil Court granting interest from the date of award to the date of the decree is set aside. The judgment of the Court below is confirmed in all other respects. Accordingly the CRP No. 3087 of 2000 is allowed in part. The CMA no. 2842 of 2000 is dismissed. No costs.