Rajkumar & Brothers v. Hindustan Steel Works Construction
2008-07-29
M.Y.EQBAL
body2008
DigiLaw.ai
JUDGMENT: Y. Eqbal, J.-This application under Article 227 of the Constitution is directed against the order dated 20.4.2006 passed by Sub-Judge-I, West Singhbhum, Chaibasa whereby he has rejected the application filed by the petitioner under Sections 151 and 152 of the Code of Civil Procedure (shortly C.P.C.) for correcting the decree dated 23.6.2005 passed in Title Suit No. 05 of 2004 to the extent of allowing post decretal interest to be paid by the respondent to the petitioner. 2. The facts of the case lie in a narrow compass:- The petitioner-contractor entered into an agreement with the respondent-M/s Hindustan Steel Works Construction Ltd. in connection with construction work of Right Dyke II Slice II of Icha Dam. Dispute and differences arose between the petitioner and the respondent and the same was referred to the arbitration. Justice Miss Manjula Bose (retired) acting as Umpire gave an award. The respondent challenged the award by filing objection under Sections 30 and 33 of the Arbitration Act, 1940 before the Sub-Judge, Chaibasa which was registered as Misc. Case No. 9 of 2004. The petitioner also filed application under Section 17 of the Act for making the award rule of the Court and for passing judgment and decree in terms of the award. The Sub-Judge, after hearing the parties, dismissed the Misc. Case in terms of the judgment and order dated 1.6.2005 and made the award rule of the court. Accordingly a decree was drawn up. Since no post interest was awarded by the court in the decree, an application was filed under Sections 151 and 152 C.P.C. for making correction in the decree and awarding post decretal interest. The Sub-Judge, after considering the facts and circumstances of the case and after hearing the parties, dismissed the application on the ground that the prayer of the petitioner does not come within the ambit of Section 152 C.P.C. Hence, this writ application. 3. I have heard Mr. P.K. Prasad, learned counsel appearing for the petitioner, Mr. R.S. Mazumdar, learned counsel appearing for the respondent and perused the impugned order. 4.
3. I have heard Mr. P.K. Prasad, learned counsel appearing for the petitioner, Mr. R.S. Mazumdar, learned counsel appearing for the respondent and perused the impugned order. 4. The court below while rejecting the application of the petitioner mainly relied upon the decision of the Supreme Court in the case of K. Razamouli vs. A.V. K. N. Swamy (A.I.A. 2001 S.C. 2316) for the proposition that court cannot award pendente lite interest under Section 152 C.P.C. as it is not covered by accidental omission or mistake. In - my opinion, before applying the ratio decided by the Supreme Court, the court below has not correctly examined the facts of the case before the Supreme Court and the facts of the instant case. In the case before the Supreme Court the Arbitrator gave an award for payment of the amount to the respondent. A suit was filed for passing decree in terms of the award and a decree 'was passed but the decree did not provide for any pendente lite interest. In the execution proceeding the decree holder claimed pendente lite interest which was rejected by the executing court. A revision petition filed before the High Court was also dismissed. Thereafter, the decree holder filed an interlocutory application before the Trial Court for amendment of decree under Section 152 C.P.C. which was also rejected and then a Civil Revision was filed. The Civil Revision was allowed by the High Court and interest was awarded by amending the decree of the Trial Court. The matter ultimately came to Supreme Court. The Supreme Court, after considering the fact that neither the Arbitrator nor the court awarded pendente lite interest to the decree holder and the Executing Court also refused to grant pendente lite interest to the decree-holder which was upheld by the High Court, the same cannot be allowed by correcting the decree under Section 152 C.P.C. Their Lordships, in the context, observed as follows:- "Shri R. Venugopal Reddy, learned senior counsel appearing for the appellant then urged that where neither the Arbitrators nor the Trial Court has awarded any pendente lite interest, it was not open to the High Court to exercise its jurisdiction under Section 152 of the Code of Civil Procedure apart from the fact that Trial Court having refused to exercise that power, the same was then exercised in revision under Section 115, C.P.C. by the High Court.
The argument has merit. Section 152 provides that a clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. The question, therefore, arises is whether, omission of pendente lite interest to the decree by the trial Court was an accidental or clerical error. In the case of Dwaraka Das vs. State of M.P., (1999)3 SCC 500 : (1999 AIR SCW 663: AIR 1999 1031) it was held that omission in not granting the pendente lite interest could not be held to be accidental omission or mistake and therefore, neither the Trial Court nor the appellant Court has power to award pendente lite interest under Section 152 of the Code of Civil Procedure. This decision is squarely applicable to the present case. In the present case, neither the Arbitrators nor the Trial Court awarded pendente lite interest to the decree holder. The Executio.9. Court also refused to grant pendent lite interest to the decree-holder and the same was upheld by the High Court in the revision petition filed against the order of the Executing Court. However, the position would be different where the judgment of a Court provides for pendente lite interest and decree omits to mention such interest. Such a mistake could be corrected under Section 152 C.P.C. The correct position of law is that a decree cannot add or subtract any relief except what has been provided in the judgment. But this is not the case here. Mr. B. Kanta Rao, learned counsel appearing for the respondent then relied upon a decision of this Court in Janakirama Iyer vs. Nilakanta Iyer, 1962 Suppl. (1) SCR 206: ( AIR 1962 SC 633 ). In this case, the Trial Court awarded mesne profit, however, in the decree it was written as net profit. On an application filed by the plaintiff for correction of the decree under Section 152 of the Code of Civil Procedure, the word 'net' was substituted by 'mesne'. This was the case of typographical mistake and, therefore not applicable to the present case." 5. In the instant case, the Umpire gave an award of 18 per cent interest from a specific date' till realization or till the date of the decree whichever is earlier.
This was the case of typographical mistake and, therefore not applicable to the present case." 5. In the instant case, the Umpire gave an award of 18 per cent interest from a specific date' till realization or till the date of the decree whichever is earlier. For better appreciation, the relevant portion of the award, given by Umpire' whereby interest was awarded, is reproduced herein below:- "Claimant is entitled to both pendente lite and post lite interest at the rate of 18% p.a. on aforesaid sum of Rs. 27,72,674.81p and also on Rs. 1,04,243.00 from 29th June, 1989 till 15th July, 1993 and further interest at same rate from 16'" July, 1993 till realization/payment made by the respondent or till date of decree whichever is earlier on the aforesaid total sum of Rs.28,76,917.81p" 6. From the aforesaid award it is manifestly clear that the Umpire awarded interest till realization of the amount or till the date of the decree whichever is earlier. In other words, the entire pendente lite interest was awarded by the Umpire till the date of the decree that may be passed by the Court making the award rule of the court or till the date of realization of the amount. The Subordinate Judge, without disturbing any part of the award, made it rule of the Court and a decree was drawn up. However, the judgment making the award rule of the Court is silent without specifically mentioning the interest payable from the date of the decree till realization. 7. In my considered opinion, therefore, it is an accidental omission or mistake by not mentioning pendente lite interest payable to the petitioner till realization although that has been awarded by the Umpire. Section 29 of the Arbitration Act, 1940 clearly provides that where an award is for payment of money, the court may in the decree order interest from the date of the decree at such rate as the Court deems reasonable to be paid on the principal sum as adjudged by the award and confirmed by the decree. 8. As noticed above, in the award the Umpire awarded interest till realization which was confirmed in the decree passed by the court. However, the rate of interest payable to the party in whose favour the award is passed shall be at such rate which the court deems reasonable. 9.
8. As noticed above, in the award the Umpire awarded interest till realization which was confirmed in the decree passed by the court. However, the rate of interest payable to the party in whose favour the award is passed shall be at such rate which the court deems reasonable. 9. In the case of M//s Jagdish Rai and Brothers VS. Union of India (A.I.R. 1999 S.C. 1258) the Supreme Court held that award of interest by the court while passing decree is a matter of procedure which ought to be granted in all money decrees. Considering the provisions of Section 29 of the Arbitration Act and Section 34 C.P.C. their Lordships observed as follows:- "The claim for interest not having been made before the Court in which proceedings for making the award the rule of the Court were pending would certainly disentitle the appellant for making such a claim during first three stages of pre-arbitration and post-arbitrations that is between award and filing of application inasmuch as several considerations will have to be examined before award of interest and at what rate. Therefore when the award had not been challenged for not granting interest, the award could not be upset to that extent. The view taken by the High Court appears to be correct to that extent. However, that is not the end of the matter. The High Court ought to have further examined whether the appellant was entitled to any interest after the decree was made in terms of the award. The Courts have taken the view that award of interest under Section 34 CPC is a matter of procedure and ought to be granted in all cases when there is a decree for money unless there are strong reasons to decline the same. In the present case the appellant had made a claim for interest before the Arbitrator but the same had been denied and no reasons are forthcoming thereto. Whatever that may be, at any rate after the Sub-Judge made an award the rule of the Court the decree ought to contain a provision for making payment of interest. If such payment had not been made appropriate correction of the decree could be ordered to be made when an application had been made before the High Court." 10.
Whatever that may be, at any rate after the Sub-Judge made an award the rule of the Court the decree ought to contain a provision for making payment of interest. If such payment had not been made appropriate correction of the decree could be ordered to be made when an application had been made before the High Court." 10. Having regard to the facts of the case and discussions made hereinbefore, I am of the opinion that there is an accidental omission in the decree which needs correction by awarding interest from the date of decree till realization at the rate of 12% p.a. in addition to the interest already awarded by the Umpire which, in my opinion, shall be reasonable and appropriate. 11. For the reasons aforesaid, this application is allowed and the impugned order is set aside with a direction to the Court below to make correction in the decree in the manner indicated hereinabove.