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2010 DIGILAW 487 (JHR)

Dutta Construction Company v. Metallurgical & Engineering

2010-04-17

PRADEEP KUMAR

body2010
JUDGMENT Heard the learned counsel for the appellants and learned counsel for the Respondent. 2. The instant Misc. Appeal is directed against the order dated 30.9.1997 passed by Sri Raghubar Sharan Pandey, Subordinate Judge-I, Ranchi in Miscellaneous ease No. 6 of 1997 by which judgment learned Sub-Judge-I has dismissed the application filed by the appellant u/ss. 30 and 33 of the Arbitration Act raising objection with regard to the Arbitration award granted by the sole Arbitrator Sri G.P. Das. With regard to the claims, the appellant has submitted before the trial court that although the Arbitrator accepted the claims made by the appellant, but it has reduced the claim amount and appellant also raised the objection that the Arbitrator failed to grant interest before the reference is made and from the date the appellant made demand for the same. Learned Sub-Judge-I, with regard to the claim of interest, came to a finding that no doubt the law as placed before the court suggest that the Arbitrator has got power to grant interest even before the reference, right from the date of claim, it is his discretionary power and as such, he found no arbitrariness and illegality in the award and dismissed the petition filed by the appellant. 3. Learned counsel for the appellant has submitted that it will appear from the objection petition (Annexure-7) as well as from the award itself (Annexure-6) that the claim with regard to extra work was made by the claimant-appellant on 26.8.1988 which was denied by the opposite party i.e. MECCON and then the appellant exercised its right of arbitration vide letter dated 26.8.1988 and as such at least appellant is entitled to get interest on the awarded money from 26.8.1988 till the payment are made. Learned counsel for the appellant has further submitted that although in the award also they have raised objection with regard to other points also, but they are confining their argument only to the point of interest as made in the objection petition which was filed as Annexure-7. The company has also filed in his reply Annexure-8 at para 15 that it was in the discretion of the Arbitrator to grant interest from the date of claim. The company has also filed in his reply Annexure-8 at para 15 that it was in the discretion of the Arbitrator to grant interest from the date of claim. It is further submitted that it will be relevant to note that if there is no legal objection and if there is no clause in the Arbitration agreement that interest cannot be granted from the date of claim then the arbitrator was duty bound to give interest from the date the claim was made, since, the plaintiff-company made its claim and suffered loss of money, which it was entitled to get. Learned counsel for the appellant has relied on two recent decisions reported in "2009(10) see page 187 in the case of Indian Hume Pipe and another decision reported in "2010(1) see Page 549 and submitted that even the Hon'ble Supreme court has ruled that if, there is no justifiable reason to deny, the interest should be granted. 4. On the other hand, learned counsel for the respondent-MEEEON has objected to the same and stated that the argument that no doubt the Arbitrator could have granted the interest from the date of claim, but, since, in his discretion he has not granted the interest, the appellants are not entitled to get the same. 5. After hearing both the parties and after going through the evidences on record, I find ,that it is admitted that there is no clause in the arbitration agreement which prohibits or stops the interest payment from the date of demand and now from the aforesaid ruling in the case of "Indian Hume Pipe reported in 2009(10) SCC page 187", the Hon'ble Supreme Court has ruled that "The learned Single Judge also committed a grave error in coming to the conclusion that even though the Arbitrator was competent to award interest, but is was not mandatory on his part to do so. The said reasoning does not appeal to be legally tenable and convincing, for the simple reason, if the amount has been withheld wrongly and without any justification then of course the aggrieved party would be fully justified in claiming interest. This is the mandate of Section 34 of the Code of Civil Procedure as also Section 29 of the Act. Both the aforesaid provisions make it abundantly clear that power to award interest at all stages vests with the Arbitrators. This is the mandate of Section 34 of the Code of Civil Procedure as also Section 29 of the Act. Both the aforesaid provisions make it abundantly clear that power to award interest at all stages vests with the Arbitrators. The Arbitrators are bound to make the award in accordance with law and if there is no embargo or legal hurdle in awarding interest for the aforesaid three stages mentioned herein above then there cannot be any justifiable reason to deny the same". Similar view has been taken by the Hon'ble Supreme Court in the case of "Madnani Construction Corporation Pvt. Ltd. Reported in 2010(1) SCC page 549" wherein it has been held after discussing all the previous judgments of the Supreme Court and lastly discussing the case of "N.C. Budhiraj reported in A. I. A. 2001 (2) page 626" where in it was decided that "as long as there is nothing in the arbitration agreement to exclude the jurisdiction of the Arbitrator to entertain a claim for interest on the amounts due under the contract, or any prohibition to claim interest on the amounts due and become payable under the contract, the jurisdiction of the Arbitrator to consider and award interest in respect of all periods subject only to Section 29 of the Arbitration Act, 1940 and that too the powers of the court there under, has to be upheld". 6. Thus, it appears that it is well settled that if there is no reasonable justification to deny interest from the date the claim was made, the Arbitrator should have awarded the interest from the date the claim was made. 7. In that view of the matter, since, the Arbitrator has finally awarded a sum of Rs. 1,35,000/- in favour of the appellant which is accepted by the appellant, in my opinion the appellants are also entitled to get interest @ 12% per annum from. 26.6.1988 till the actual payment made by the respondent company-MECCON and it is also made clear that the interest already paid by MECCON as per the order of the Arbitrator from the date he entered into reference till the payment accepted by the appellant will be adjusted while making the final payment. 8. 26.6.1988 till the actual payment made by the respondent company-MECCON and it is also made clear that the interest already paid by MECCON as per the order of the Arbitrator from the date he entered into reference till the payment accepted by the appellant will be adjusted while making the final payment. 8. The appeal is allowed in part and the judgment dated 30.9.1997 passed by Sri Raghubar Sharan Pandey, Subordinate Judge-I, Ranchi in Miscellaneous Case No. 6 of 1997 is set aside with regard to the interest only. 9. It is hoped that the respondent company will make the payment as early as possible and not force the appellant to seek legal remedy for execution of the same.