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2003 DIGILAW 245 (JK)

Union Of India v. Roshni Devi

2003-08-21

PERMOD KOHLI

body2003
This appeal is directed against order dated 3.7.2002 passed by the District Judge, Jammu in execution proceedings whereby he has allowed interest on the award amount @ 18% per annum. 2. The appellant is aggrieved of the order passed by the Executing Court whereby interest amount of Rs. 27, 54, 396 @ 15% from 24.7.1991 to 1. 2. 199 and further amount of Rs. 9, 15, 220 as interest @ 18% w.e.f. 2.2.1999 to 13.3.2001 and additional amount of Rs. 3, 18, 686/- on account of interest for the period 5.3.2001 to 3.7.2002 has been allowed in favour of the respondents/decree holders. The Execution petiton came to be filed arising out of judgment and decree dated 1.2.1999 passed by the High Court whereby award dated 24.7.1991 passed by the Arbitrator was made rule of the court. Appeal preferred against the judgment dated 1.2.1999 also came to be dismissed by the Honble Division Bench of this Court vide judgment dated 5.10.2002. Under the award passed by the arbitrator, claim of interest in favour of respondents at Item No. 24 of the claim was allowed in the following manner: "24. Interest on amounts wrongfully sustained at the rate of 18% PA as under: (a) Past interest. (b) Pendente lite interest from the date of reference of the disputes to the arbitrator upto the date of award. (c) Future interest from the date of Award until the payment of Awarded amount. Interest allowed as follows: Past interest on all sums awarded less these against Ser 22 and Ser 25 @18% PA from 27 Mar 86 (date of submission of cliaims by the claimants) to 19 Mar 91( The date of commencement of proceedings i.e. the date when parties appeared before the arbitrator after filing of claims). Pentdentlite interest not allowed. Future interest @ 15% PA on sums awarded from date of award to date of payment or court decree, whichever earlier, if the payment is not made within ninety days from the date of award. " 3. Pentdentlite interest not allowed. Future interest @ 15% PA on sums awarded from date of award to date of payment or court decree, whichever earlier, if the payment is not made within ninety days from the date of award. " 3. This court while making award rule of the court vide judgment dated 1.2.1999, directed payment of interest in terms of section 29 of the Arbitration Act, 1940 as under:- "It is ordered that so far non-objector/petitioner is concerned he will be entitled to interest under section 29 of the Arbitration Act at the rate of 18% per annum from the date of this order till the date of payment of the awarded amount." 4. After the award attained finality and decree in terms thereof was passed, the same was put to execution. The trial court directed recovery of interest as indicated hereinabove . The challenge in the appeal is confined to the payment of interest as directed by the Executing Court. The main ground of challenge is that the interest payable under the award/decree, is only on the principal amount as awarded by the arbitrator and not on the amount of interest as awarded by the arbitrator in the award, which has been converted into decree. Emphasis is laid on section 29 of the Arbitration Act 1940 to challenge the order of the Executing Court regarding payment of interest over interest. 5. I have heard learned counsel for the parties and perused the award as also the judgment dated 1.2.1999, whereby the award was made rule of the court. 6. Interest was one of the claims before the arbitrator for the period 27.3.1986 to 19.3.1991. In addition to this, the claimants had further claimed pendentlite interest and future interest @ 15% PA. The arbitrator allowed interest @ 18% on all the sums awarded against various claims for the period 27.3.1986 to 19.3.1991. The arbitrator also allowed future interest @ 15% on the sums awarded from the date of award to the date of payment or court decree whichever earlier. However, claim of the interest pendentlite was disallowed. This court vide judgment dated 2.2.1999 made award rule of the court and further directed payment of interest @ 18% PA from the date of decree till the date of payment of the awarded amount. This order was passed in terms of section 29 of the Arbitration Act. 7. However, claim of the interest pendentlite was disallowed. This court vide judgment dated 2.2.1999 made award rule of the court and further directed payment of interest @ 18% PA from the date of decree till the date of payment of the awarded amount. This order was passed in terms of section 29 of the Arbitration Act. 7. In view of the above, respondents claim of interest which was decreed relate to interest @ 18% per annum w.e.f. 27.3.1986 to 19.3.1991, which amount stands calculated at Rs. 8, 17, 579.30. This interest became part of the sum awarded making total of sum awarded at Rs.24, 44, 500/-. Under the terms of the award and decree, interest @ 15% was allowed w.e.f. the date of the passing of the award i.e. 24.7.1991 to the date of making the award rule of the court i.e. 1.2.1999. This interest was to be calculated @ 15% on the total sum awarded (claims against various items of work plus interest for the period 27.3.1986 to 19.3.1991). Since the Arbitrator was only competent to award interest upto the date of payment or decree of the court, it was the court which was required to grant or refuse further interest from the date of passing of the decree in terms of section 29 of the Arbitration Act and the court again awarded interest @ 18% from the date of passing of the decree till the payment is made. The Executing Court has rightly calculated interest in terms of the decree of the court. 8. Mr. S. S. Nanda, Sr. SGSC for petitioner has vehemently argued that interest over interest is not payable and therefore, Executing Court has committed glaring illegality in awarding interest over interest from the date of passing of the decree. Mr. Anil Mahajan, learned counsel on behalf of decree holder has contested this proposition and has submitted that the Executing Court has rightly allowed the interest in accordance with the terms of the decree. 9. Admitted position is that there was a separate claim for interest before the arbitrator and that claim was allowed. Once the claim of interest was allowed by the arbitrator, it becomes the sum awarded under the award and is accordingly considered to be part of the principal. The arbitrator has further allowed future interest from the date of the award to the date of decree or payment whichever earlier. Once the claim of interest was allowed by the arbitrator, it becomes the sum awarded under the award and is accordingly considered to be part of the principal. The arbitrator has further allowed future interest from the date of the award to the date of decree or payment whichever earlier. This future interest is to be charged on the total sum awarded by the arbitrator, which also includes the claim of interest for the pre-reference period as allowed by the arbitrator. Admittedly, no payment was made after passing of the award and therefore, future interest awarded by the arbitrator is to be charged on the award amount till passing of the judgment by the court i.e. 1.2.1999 when the award was made rule of the court. The court while making award rule of the court, awarded further interest @ 18% on the entire decretal amount till the decree is satisfied. It cannot be disputed that there is component of interest over interest but the same is permissible under law. The issue came up for consideration before the Apex Court in case titled Oil and Natural Gas Commission v. M/s M.C. Clelland Engineers S.A., AIR 199 SC 1614. The Apex Court on consideration of the question held as under: " This appeal arises out of certain arbitration proceedings between the parties to this appeal resulting in an award made on February 29, 1988. The Arbitrators by their award directed that the appellant shall pay to the respondent as follows: " (i) US $ 1004. 50 being interest on US $40, 102. 97 at 12% p. a from 10-12- 1985 to 16.4.1986. (ii) US $ 59, 583 being interest on US $3, 12, 011. 00 at 12% from 3. 5. 1983 to 5. 11. 1984. " On these two items of claim the Arbitrators also awarded interest at 12% per annum from the date of award till realization. The award so made by the Arbitrators was filed into the Court. Objections filed thereto stood dismissed and decree was passed in terms of the award. Against that order made by the learned Single Judge in his original jurisdiction an appeal was carried to a division bench also dismissed. Hence this appeal. The award so made by the Arbitrators was filed into the Court. Objections filed thereto stood dismissed and decree was passed in terms of the award. Against that order made by the learned Single Judge in his original jurisdiction an appeal was carried to a division bench also dismissed. Hence this appeal. Shri B. Dutta, learned senior counsel for the appellant, contended that what was awarded by the Arbitrators in respect of the two claims referred to earlier in the course of this order is itself interest for different periods. He, therefore, submitted that Arbitrators could not have further awarded interest on the claims awarded at 12% per annum from the date of award till realization . He did not dispute, and very fairly and correctly, that the Arbitrators do have the power to grant interest on the amount claimed in the arbitration and the power of the Arbitrators was very characteristically described by him as, as before, during and after of the arbitration proceedings. His point is that there cannot be interest upon interest when the claim itself is one of interest and interest upon that amount could not have been granted by the Arbitrators and relied upon Section 3 of the Interest Act. There cannot be any doubt that the Arbitrators have powers to grant interest akin to Section 34 of the CPC which the power of the Court in view of Section 29 of the Arbitration Act, 1940. It is clear that interest is not granted upon interest awarded but upon the claim made. The claim made in the proceedings is under two heads- one is the balance of amount under invoices and letter dated February 10, 1981 and the amount certified and paid by the appellant and the second is the interest on delayed payment stood crystallized by the time the claim was filed before the Arbitrators . Therefore, the power of the Arbitrators to grant interest on the amount of interest which may, in other words, be termed as interest on damages or compensation for delayed payment which would also become part of the principal . If that is the correct position in law, we do not think that Section 3 of the Interest Act has any relevance in the context of the matter which we are dealing with in the present case. If that is the correct position in law, we do not think that Section 3 of the Interest Act has any relevance in the context of the matter which we are dealing with in the present case. Therefore, the first contention raised by Shri Datta, though interesting, deserves to be and is rejected. " 10. The aforesaid judgment of the Apex Court was further followed in case titled Union of India v. M/s Harbans Singh Tuli and Sons Builders (P) Ltd, AIR 2000 Punjab and Haryana 313, in which it has been held: " So far as claim No. 21 in the principal sum adjudged is concerned, in my opinion, this amount had to be included in the principal sum adjudged considering that this was the amount which was awarded by the arbitrator to the contractor being the amount payable under the award besides the items covered by claims 2 to 20 and thus this amount had to be included in the principal sum adjudged. In this view of the matter, the contractor would be entitled to claim future interest not only in respect of claims 2 to 20 but also in respect of claim 21. Besides that the contractor would also be entitled to claim future interest on the pendente lite interest awarded to the contractor under claim No. 1" 11. This appeal has been filed against an order passed in execution proceedings. Before amendment of CPC, such an order passed under Section 47 of the Code was deemed to be decree as defined under the Code, however, after the amendment, it ceases to be a decree, hence not appealable . Since order impugned is not appealable, it can be assailed in revision, hence this appeal is treated as revision. 12. In view of the law laid down by the Apex Court, I do not find any infirmity, illegality or material irregularity in the order impugned in this revision much less a jurisdictional error . This revision petition is accordingly dismissed.