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2008 DIGILAW 463 (AP)

Government of India, Ministry of Defence v. Aluminium Photo Industries Private Limited

2008-07-04

GHULAM MOHAMMED, P.SWAROOP REDDY

body2008
JUDGMENT (Per Ghulam Mohammed, J.) Since the subject-matter in both the appeal and revision and also the parties are one and the same, the appeal and revision are heard together and being decided by this common judgment. Both the appeal and revision are preferred by Government of India represented by the General Manager, Ordnance Factory, Dehradun against Mis. Aluminium Photo Industries, Hyderabad. 2. The appeal is filed under Section 39 (2) of the Arbitration Act challenging the order passed in O.P.No. 80 of 1990 and the revision is preferred against the award passed in O.P.No. 127 of 1990. Both OPs have been disposed of by common order dated 11-11-1998. For the sake of convenience, the parties are arrayed as appellant and respondent in the appeal. 3. The details necessary for deciding both the cases are that the General Manager, Ordnance Factory, Dehradun, had called for tenders for supply of various angles of departure charts, disc fuses, ranges etc., as per the detailed drawings and specifications to be issued by it. The tender submitted by the respondent company was accepted and nine purchase orders were placed on the respondent with the condition that the detailed drawings and specification will be supplied by the Ordnance Factory and thereafter the company has to prepare negative and positive prints and consequent upon approval, the printing and etching work has to be taken up. Since disputes arose between the parties, the matter was ultimately referred to an Arbitrator. The respondent filed 16 claims before the Arbitrator totalling Rs.18,64,321-04 ps and subsequently additional claim was made for grant of interest on the original claims at 18% per anum for two periods from 1-10-1981 to 1-10-1988 amounting to Rs.23,49,004/- and Rs.10,000/- towards legal expenses and the appellant/ Government laid the counter-claims. The Arbitrator after considering the rival claims of the appellant and the respondent passed an award dated 1-12-1989 allowing the claims 1 to 4, 6, 7, 8, 13 and 14 made by the respondent and disallowed all the counterclaims of the appellant/Government. Aggrieved thereby, the appellant Government preferred OPs before I Senior Civil Judge, City Civil Court, Hyderabad, challenging the common award mainly contending the rate of interest awarded and the claims of the respondent to the extent allowed by the Arbitrator. 4. Aggrieved thereby, the appellant Government preferred OPs before I Senior Civil Judge, City Civil Court, Hyderabad, challenging the common award mainly contending the rate of interest awarded and the claims of the respondent to the extent allowed by the Arbitrator. 4. The Court below after re-considering the entire claims and counter-claims allowed O.P. No. 127 of 1990 making the award rule of the Court, but claims Nos. 2 and 6 were allowed with future interest at 10% per annum from the date of suit till realization on principal amounts. Further, O.P. No. 80 of 1990 was dismissed in respect of claims Nos. 1, 3, 4, 7, 8, 13 and 14 and allowed claims Nos. 2 and 6 with costs. 5. Heard learned standing counsel for the appellant/petitioner and learned counsel for the respondent and perused the record. 6. Learned standing counsel for the appellant/petitioner contended that the Government has suffered loss on account of non-supply of items in time, therefore the court below ought not to have allowed Claims Nos. 2 and 6 with future interest. On the other hand, learned counsel appearing for respondent contended that the court below has not awarded any interest or interest on security or damages for the loss of business due to non-payment, as per the terms of agreement. 7. We have considered the rival submission made by both the counsel. At the outset, it is to be noticed that the respondent- company has not preferred any appeal or revision challenging the common order of the court below modifying the award passed by the Arbitrator. Thus, the main controversy in these cases is with regard to grant of interest for delayed payment and damages connected thereto. The point that arises in these two cases is squarely covered by the judgment of Division Bench of this Court in M. Venkata Rao v. Union of India' and the relevant portion reads as under: "The contractor claimed certain amount as compensation for not releasing the security deposit within reasonable time after submitting his qualified No Claim Certificate. In a way it is the plea of the Contractor that had the amount been released, he would have invested the same and thereby earned some profits. This is a too remote claim. In a way it is the plea of the Contractor that had the amount been released, he would have invested the same and thereby earned some profits. This is a too remote claim. This aspect fell for consideration before the Division Bench of this Court in Superintending Engineer v. Kehar Singh 1994 (1) ALT 293 (D.B.) wherein it has been held that awarding damages by arbitrator on the claim made by the contractor that he would have earned more profit if money due to him is paid in time is unsustainable as it is too remote a claim to be allowed. When the arbitrator granted interest on the withheld amount, the contractor is not entitled to any further amount on that score." When the interest has been granted by the Arbitrator as modified by the court below, the respondent is not entitled to the compensation towards loss of business due to non-payment of contract amount. In the circumstances, following the judgment in M. Venkat Rao's case (1 supra), and for the reasons given therein, the common order passed by the court below stands modified holding that the respondent-company is not entitled for interest for delayed payment and damages connected thereto. 8. Subject to above modifications, the C.M.A. and Civil Revision Petition are allowed. No order as to costs.