Electronics Corporation Of India Ltd. v. Director Of Education
2012-04-27
DEV DARSHAN SUD
body2012
DigiLaw.ai
JUDGMENT : Dev Darshan Sud, J. Objection petition be registered. 2. Both these petitions are disposed of by this common order. The undisputed facts in this case may be noticed. An award in favour of the Decree Holder was passed by the Arbitrator (The Principal Secretary, Tourism, Transport to the Government of Himachal Pradesh) on 3.7.2006. This award was challenged by way of Arbitration Case No. 30 of 2006 titled State of H.P. v. Electronic Corporation of India Ltd., which petition was dismissed on 14th September, 2010. The judgment has attained finality because it is the admitted case of the parties that no appeal or other proceedings were preferred against the award. The execution petition No. 17 of 2006 was preferred by the Decree Holder-Corporation on 10th November, 2006. The execution was objected on a number of technical grounds and accordingly the Decree Holder filed fresh execution petition No. 18 of 2011. 3. It is undisputed before me that on 8.4.2011 this Court records that an amount of Rs. 51,72,593/- by two demand drafts, bearing Nos. 835944 and 585103 issued by the Axis Bank Ltd. for Rs. 39,77,593/- and Rs. 12 lacs by the Punjab National Bank respectively have been sent to the Decree Holder. It is the interest which is now in dispute and is challenged as due and outstanding from the Judgment Debtor-State. 4. Learned counsel appearing for the petitioner urges that the matter now stands finally decided by the Supreme Court in State of Haryana v. S.L. Arora 2010 (3) SCC 690 and H.P. Urban Housing and Urban Development and others v. Ranjit Singh Rana (2012)4 SCC 505 . In S.L. Aroras case the Honble Supreme Court interpreted the provision of Section 31 (7) of the Act. The Court held: "17. The Arbitration and Conciliation Act, 1996 on the other hand, contains a specific provision dealing with the power of the Arbitral Tribunal to award interest. The said provision is incorporated in sub-section (7) of Section 31 which deals with the form and contents of arbitral awards. The said sub-section (7) is extracted below: "31.
The Court held: "17. The Arbitration and Conciliation Act, 1996 on the other hand, contains a specific provision dealing with the power of the Arbitral Tribunal to award interest. The said provision is incorporated in sub-section (7) of Section 31 which deals with the form and contents of arbitral awards. The said sub-section (7) is extracted below: "31. (7)(a) Unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the Arbitral Tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment." 18. Section 31 (7) makes no reference to payment of compound interest or payment of interest upon interest. Nor does it require the interest which accrues till the date of the award, to be treated as part of the principal from the date of award for calculating the post-award interest. The use of the words "where and insofar as an arbitral award is for the payment of money" and use of the words "the Arbitral Tribunal may include in the sum for which the award is made, interest.on the whole or any part of the money" in clause (a) and use of the words "a sum directed to be paid by an arbitral award shall carry interest" in clause (b) of sub-section (7) of Section 31 clearly indicate that the section contemplates award of only simple interest and not compound interest or interest upon interest. "A sum directed to be paid by an arbitral award" refers to the award of sums on the substantive claims and does not refer to interest awarded on the "sum directed to be paid by the award". In the absence of any provision for interest upon interest in the contract, the Arbitral Tribunals do not have the power to award interest upon interest, or compound interest, either for the pre-award period or for the post-award period. 19.
In the absence of any provision for interest upon interest in the contract, the Arbitral Tribunals do not have the power to award interest upon interest, or compound interest, either for the pre-award period or for the post-award period. 19. There is a tendency among contractors to elevate the claims for interest and costs to the level of substantive disputes by describing them as separate and independent heads of claim. The long pendency of arbitration matters either due to prolonged arbitration proceedings or due to litigations (both intervening and post-arbitral), has the unfortunate effect of swelling the interest payable on the amount awarded and costs to very substantial amounts. In many arbitral awards for money, the interest awarded often exceeds the amount awarded, by several times. 20. Leisurely arbitration, avoidable judicial interventions, and indecisiveness on the part of decision makers in the Government and statutory bodies in accepting and settling genuine claims either at the stage when the claim is made or at least at the stage when the award is made have resulted in undue emphasis and importance being bestowed upon interest and costs. However substantial their quantum may be in a given case, interest, in particular interest from the date of the award, and costs are ancillary issues and are not substantive disputes. 21. Some Arbitral Tribunals have misconstrued clause (b) of Section 31 (7) of the Act and assumed that the said provision requires that the rate of post-award interest in all arbitral awards should be 18% per annum, and that they do not have any discretion in regard to post-award interest. Some have misconstrued it further to infer that the rate of interest mentioned therein is an indication that invariably the rate of interest in arbitrations, either pre-award or post award, should be 18% per annum. Both these assumptions are baseless and erroneous. If that was the legislative intention, there would have been no need for vesting discretion in Arbitral Tribunals, in the matter of interest, under Section 31 (7)(a). 22. The principles relating to award of interest, in general, are not different for courts and Arbitral Tribunals, except to the extent indicated in Section 31 (7) of the Act and the Civil Procedure Code.
22. The principles relating to award of interest, in general, are not different for courts and Arbitral Tribunals, except to the extent indicated in Section 31 (7) of the Act and the Civil Procedure Code. A comparatively high rate of post-award interest is provided in Section 31 (7)(b) of the Act, not because 18% is the normal rate of interest to be awarded in arbitration's, but purely as a deterrent to award debtors from avoiding payment or using delaying tactics. In fact, a provision similar to Section 31 (7) (b) of the Act, if provided in Section 34 of the Code of Civil Procedure, will considerably reduce the travails of the plaintiffs in executing their decrees in civil cases. Be that as it may. 23. The difference between clauses (a) and (b) of Section 31 (7) of the Act may conveniently be noted at this stage. They are: (i) Clause (a) relates to pre-award period and clause (b) relates to post-award period. The contract binds and prevails in regard to interest during the pre-award period. The contract has no application in regard to interest during the post-award period. (ii) Clause (a) gives discretion to the Arbitral Tribunal in regard to the rate, the period, the quantum (principal which is to be subjected to interest) when awarding interest. But such discretion is always subject to the contract between the parties. Clause (b) also gives discretion to the Arbitral Tribunal to award interest for the post-award period but that discretion is not subject to any contract; and if that discretion is not exercised by the Arbitral Tribunal, then the statute steps in and mandates payment of interest, at the specified rate of 18% per annum for the post-award period. (iii) While clause (a) gives the parties an option to contract out of interest, no such option is available in regard to the post-award period. In a nutshell, in regard to pre-award period, interest has to be awarded as specified in the contract and in the absence of contract, as per the discretion of the Arbitral Tribunal. On the other hand, in regard to the post-award period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum. 24.
On the other hand, in regard to the post-award period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum. 24. As there is some confusion as to what Section 31 (7) authorizes and what it does not authorize, we will attempt to set out the legal position regarding award of interest by the Arbitral Tribunals, as emerging from Section 31 (7) of the Act. 24.1 The provision for interest in the Act is contained in Section 31 dealing with the form and contents of arbitral award. It employs two significant expressions "where the arbitral award is for payment of money" and "the Arbitral Tribunal may include in the sum for which the award is made, intereston the whole or any part of the money." (emphasis supplied). The legislature has thus made it clear that award of interest under sub-section (7) of Section 31 (and award of costs under sub-section (8) of Section 31 of the Act) are ancillary matters to be provided for by the award, when the Arbitral Tribunal decides the substantive disputes between the parties. The words "sum for which the award is made" and "a sum directed to be paid by an arbitral award" contextually refer to award on the substantive claims and not ancillary or consequential directions relating to interest and costs. 24.2 The authority of the Arbitral Tribunals to award interest under Section 31 (7) (a) is subject to the contract between the parties and the contract will prevail over the provisions of Section 31 (7)(a) of the Act. Where the contract between the parties contains a provision relating to, or regulating or prohibiting interest, the entitlement of a party to the contract interest for the period between the date on which the cause of action arose and the date on which the award is made, will be governed by the provisions of the contract, and the Arbitral Tribunal will have to grant or refuse interest, strictly in accordance with the contract. The Arbitral Tribunals cannot ignore the contract between the parties, while dealing with or awarding pre-award interest.
The Arbitral Tribunals cannot ignore the contract between the parties, while dealing with or awarding pre-award interest. Where the contract does not prohibit award of interest, and where the arbitral award is for payment of money, the Arbitral Tribunal can award interest in accordance with Section 31 (7)(a) of the Act, subject to any term regarding interest in the contract. 24.3 If the contract provides for compounding of interest, or provides for payment of interest upon interest, or provides for interest payable on the principal up to any specified stage(s) being treated as part of principal for the purpose of charging of interest during any subsequent period, the Arbitral Tribunal will have to give effect to it. But when the award is challenged under Section 34 of the Act, if the court finds that the interest awarded is in conflict with, or violating the public policy of India, it may set aside that part of the award. 24.4 Where an Arbitral Tribunal awards interest under Section 31 (7)(a) of the Act, it is given discretion in three areas to do justice between the parties. First is in regard to rate of interest. The Tribunal can award interest at such rate as it deems reasonable. The second is with reference to the amount on which the interest is to be awarded. Interest may be awarded on the whole or any part of the amount awarded. The third is with reference to the period for which the interest is to be awarded. Interest may be awarded for the whole or any part of the period between the date on which cause of action arose and the date on which the award is made. 24.5 The Act does away with the distinction and differentiation among the four interest-bearing periods, that is, pre-reference period, pendent lite period, post award period and post-decree period. Though a dividing line has been maintained between pre-award and post award periods, the interest-bearing period can now be a single continuous period the outer limits being the date on which the cause of action arose and the date of payment, subject to however to the discretion of the Arbitral Tribunal to restrict the interest to such period as it deems fit. 24.6 Clause (b) of Section 31 (7) is intended to ensure prompt payment by the award-debtor once the award is made.
24.6 Clause (b) of Section 31 (7) is intended to ensure prompt payment by the award-debtor once the award is made. The said clause provides that the "sum directed to be paid by an arbitral award" shall carry interest at the rate of 18% per annum from the date of award to the date of payment if the award does not provide otherwise in regard to the interest from the date of the award. This makes it clear that if the award grants interest at a specified rate up to the date of payment, or specifies the rate of interest payable from the date of award till the date of payment, or if the award specifically refused interest, clause (b) of Section 31 will not come into play. But if the award is silent in regard to the interest from the date of award, or does not specify the rate of interest from the date of award, then the party in whose favour an award for money has been made, will be entitled to interest at 18% per annum from the date of award. He may claim the said amount in execution even though there is no reference to any post-award interest in the award. Even if the pre-award interest is at much lower rate, if the award is silent in regard to post-award interest, the claimant will be entitled to post-award interest at the higher rate of 18% per annum. The higher rate of interest is provided in clause (b) with the deliberate intent of discouraging award-debtors from adopting dilatory tactics and to persuade them to comply with the award." (at pp 697-701) 5. This decision was re-affirmed by the Court in Ranjit Singhs case holding: "8. Section 31 (7)(a) and (b) of the Act read as under: "31. (7)(a) Unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the Arbitral Tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment." 9. The above provision has been recently considered by this Court in State of Haryana v. S.L. Arora & Co. (2010)3 SCC 690 . This Court held as under: (SCC p. 699, para 23) "23..In a nutshell, in regard to pre-award period, interest has to be awarded as specified in the contract and in the absence of contract, as per the discretion of the Arbitral Tribunal. On the other hand, in regard to the post-award period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum." This Court further observed in para 24.6 as under: (SCC p.701) "24.6.But if the award is silent in regard to the interest from the date of award, or does not specify the rate of interest from the date of award, then the party in whose favour an award for money has been made, will be entitled to interest at 18% per annum from the date of award. He may claim the said amount in execution even though there is no reference to any post-award interest in the award. Even if the pre-award interest is at much lower rate, if the award is silent in regard to post-award interest, the claimant will be entitled to post-award interest at the higher rate of 18% per annum." 10. The learned counsel for the parties are ad idem that the arbitrator has not exercised any discretion in the matter pertaining to the interest for the post-award period. Obviously, in absence thereof, by virtue of Section 31 (7)(b) of the Act, the award would carry interest @ 18% p.a. from the date of the award till the date of the payment. 11. Whether 24-5-2001 when the entire award amount was deposited by the appellants into the High Court is the date of payment? 12. "Payment" is not defined in the Act. Concise Oxford English Dictionary (10th Edn., Revised) defines "payment": "Payment- (1) The action of paying or the process of being paid. (2) An amount paid or payable." 13. Webster Comprehensive Dictionary (International Edn.) Vol.
12. "Payment" is not defined in the Act. Concise Oxford English Dictionary (10th Edn., Revised) defines "payment": "Payment- (1) The action of paying or the process of being paid. (2) An amount paid or payable." 13. Webster Comprehensive Dictionary (International Edn.) Vol. 2 defines "payment": "Payment- (1) the act of paying. (2) Pay; requital; recompense." 14. The Law Lexicon by P. Ramanatha Aiyar, 2nd Edn. Reprint, inter alia, states: "payment is defined to be the act of paying, or that which is paid; discharge of a debt, obligation or duty; satisfaction of claim; recompense; the fulfilment of a promise or the performance of an agreement; the discharge in money of a sum due". 15. The word "payment" may have different meaning in different context but in the context of Section 37 (1)(b); it means extinguishment of the liability arising under the award. It signifies satisfaction of the award. The deposit of the award amount into the court is nothing but a payment to the credit of the decree-holder. In this view, once the award amount was deposited by the appellants before the High Court on 24-5-2001, the liability of post-award interest from 24-5-2001 ceased. The High Court, thus, was not right in directing the appellants to pay the interest @ 18% p.a. beyond 24-5-2001. 16. The appeal is, accordingly, allowed in part. The impugned order of the High Court is modified and it is directed that the appellants shall be liable to pay interest @ 18% p.a. for the post-award period from the date of award until 24-5-2001. After 24-5-2001, the appellants are not liable to pay any interest on the award amount under Section 37 (1)(b) of the Act." (at pp 507-508) 6. This is the settled principle of law. Submission made on behalf of the State that no interest is payable since the same was not awarded by the Arbitrator, cannot be accepted in view of what has been held by the Supreme Court. 7. Another submission made on behalf of the State requires to be noticed and that is that the Decree Holder has waived his right to claim the interest. I do not find anything on record to show or prove abandonment of such right by the Decree Holder.
7. Another submission made on behalf of the State requires to be noticed and that is that the Decree Holder has waived his right to claim the interest. I do not find anything on record to show or prove abandonment of such right by the Decree Holder. It is also urged by the learned counsel that since Section 36 of the Act places a bar on execution when proceedings under Section 34 are pending; there is no amount due to the Decree Holder. This submission cannot be accepted. Though Section 36 places a bar of execution, it does not preclude the objector from depositing the money in Court so that interest may not run on this amount. Payment in Court has been held to be a valid payment as held in Ranjit Singh Ranas case. Merely because the objections are filed would not mean that the objector is to succeed in all probabilities. What requires to be considered is the fact that if the objections are dismissed, the Decree Holder/non-objector will be entitled to the entire amount along with interest. Merely institution of the objections does not cease the interest on the amount. In these circumstances, objection petition No. 165 of 2012 filed in Execution Petition No. 18 of 2011 is dismissed. 8. The Decree Holder will be entitled to interest as contemplated under Section 37 (1)(b) of the Act from the date of award till the amount has been deposited by the Judgment Debtor or paid to the Decree Holder as held by the Supreme Court in Ranjit Singhs case. Both the petitions stand disposed of.